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09/25/96 VILLAGE HOFFMAN ESTATES v. CINCINNATI

September 25, 1996

VILLAGE OF HOFFMAN ESTATES, PLAINTIFF-APPELLANT,
v.
THE CINCINNATI INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Everette A. Braden, Judge Presiding.

Released for Publication October 22, 1996.

Presiding Justice Tully delivered the opinion of the court: Cerda and Gallagher*, JJ., concur.

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Plaintiff, Village of Hoffman Estates (hereinafter Village), appeals from an order of the circuit court of Cook County denying its motion for summary judgment under section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1992)) against defendant, Cincinnati Insurance Company, and granting defendant's cross-motion for summary judgment against plaintiff. Jurisdiction is vested in this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

Joe Marsala, a subcontractor and an employee of Prairie Materials, brought suit in the circuit court of Cook County against defendants, including the Village, Leopardo-Tektonic and many others, for the alleged personal injuries he sustained when he fell off a platform on the job site (hereinafter this suit is known as the Marsala complaint). Leopardo-Tektonic, and the others are not a party to this appeal. The Village and Leopardo-Tektonic had entered into a construction contract. The Village was the owner of the construction project, and Leopardo-Tektonic was to act as the general contractor for the project. Leopardo-Tektonic's responsibilities would include supervising all the work, coordinating all the construction methods, paying for all labor and materials and hiring a superintendent. In addition, Leopardo-Tektonic was to purchase and maintain liability insurance.

The Cincinnati Insurance Company (hereinafter Company) issued an insurance policy to Leopardo-Tektonic. The Company also issued a General Change Endorsement to the policy, which added the Village as an additional insured. The endorsement provides, in pertinent part:

"The 'Persons Insured' provision is amended to include as an INSURED the person or organization named above but only with respect to liability incurred solely as a result of some act or omission of the NAMED INSURED. " (Emphasis added.)

The Marsala complaint alleged liability against both Leopardo-Tektonic and the Village. The Village requested that the Company defend the Village in this action, but the Company refused. Consequently, the Company filed a motion for summary judgment, which the trial court granted and the Village now appeals.

ISSUE PRESENTED

On appeal, plaintiff argues that the circuit court erred in finding that defendant had no duty to defend plaintiff. Specifically, plaintiff contends that defendant's refusal to defend was based on a vague, ambiguous exclusionary provision contained in the endorsement.

On de novo review of an order granting summary judgment, a court of review must ascertain whether the trial court properly concluded there were no genuine issues of material fact and if there were none, whether judgment for the movant was correct as matter of law. Federal Insurance Co. v. Economy Fire & Casualty Co., 189 Ill. App. 3d 732, 735, 545 N.E.2d 541, 136 Ill. Dec. ...


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