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02/01/96 MONTICELLO INSURANCE COMPANY v. WIL-FREDS

February 1, 1996

MONTICELLO INSURANCE COMPANY, PLAINTIFF-APPELLEE,
v.
WIL-FREDS CONSTRUCTION, INC., F/K/A WIL-FREDS, INC., DEFENDANT-APPELLANT (FUJIKAWA JOHNSON AND ASSOCIATES, INC., AND THE CITY OF NAPERVILLE, DEFENDANTS).



Appeal from the Circuit Court of Du Page County. No. 93--MR--525. Honorable John S. Teschner, Judge, Presiding.

The Honorable Justice Bowman delivered the opinion of the court: Colwell and Rathje, JJ., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

Defendant, Wil-Freds Construction, Inc. (Wil-Freds), appeals a summary judgment entered in favor of plaintiff, Monticello Insurance Company (Monticello), in a declaratory judgment action to determine whether Monticello is required to defend or indemnify Wil-Freds under a comprehensive general liability insurance policy. We affirm.

I. Background

The following summary of the facts and procedural history is taken from the record on appeal. On April 27, 1989, the City of Naperville (Naperville) and Wil-Freds entered into an agreement for the construction of a three-story municipal building and an adjoining 400-car parking garage (the project). The contract between Wil-Freds and Naperville provided, inter alia, that Wil-Freds was solely responsible for all construction methods, techniques, and procedures; that Wil-Freds was responsible for the acts and omissions of subcontractors; that Wil-Freds warranted the work to be of good quality, free from defects, and in conformance with the contract documents; and that Wil-Freds would furnish a performance bond in an amount equal to the contract sum.

On October 1, 1992, following the construction of the project, Naperville filed a two-count complaint against Wil-Freds and the project's architect, Fujikawa Johnson & Associates, Inc. (Fujikawa). Count II of the complaint, which pertained to Wil-Freds, was entitled "Breach of Contract Against Wil-Freds Construction, Inc." It alleged a multitude of construction defects, including:

"abnormal voids and cracks in the concrete walls and columns in the parking garage; honeycombed concrete; incompletely consolidated concrete; abnormal cracking at the Southwest stairwell; exposure of rebar at column G6; insufficient support for anchor bolts at column G6; leaking in the parking garage below the decorative fountain; water damage to the lobby of the office building and basement underneath the lobby; interior water damage caused by water penetration of the roof; an unbalanced, defective HVAC system; defective, unsightly granite; cracked terrazzo floors and stairwells; defective doors; and numerous miscellaneous construction defects."

Wil-Freds tendered the defense of Naperville's action to Monticello, which insured Wil-Freds under a comprehensive general liability (CGL) policy. In response, on August 9, 1993, Monticello filed a complaint for declaratory judgment against Wil-Freds, Naperville, and Fujikawa, seeking a determination of its obligation to defend or indemnify Wil-Freds in connection with Naperville's action.

The policy at issue is a standard CGL policy and provides:

"The company [Monticello] will pay on behalf of the insured [Wil-Freds] all sums which the insured shall become legally obligated to pay as damages because of

A. bodily injury or

B. property damage

to which this insurance applies, caused by an occurrence[.]"

The policy defines "occurrence" as: "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured[.]"

The policy also contains a number of exclusions, including the following:

"This insurance does not apply:

(n) to property damage to the named insured's products arising out of such products or any part of such products;

(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or ...


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