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04/09/97 CINCINNATI COMPANIES v. WEST AMERICAN

April 9, 1997

THE CINCINNATI COMPANIES, PLAINTIFF-APPELLEE,
v.
WEST AMERICAN INSURANCE COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. NO. 93--MR--407. Honorable Bonnie M. Wheaton, Judge, Presiding.

Released for Publication May 9, 1997.

Presiding Justice Geiger delivered the opinion of the court. Thomas and Rathje, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The defendant, West American Insurance Company (West American), appeals from the April 8, 1996, order of the circuit court of Du Page County granting summary judgment in favor of the plaintiff, the Cincinnati Companies (Cincinnati), on its complaint for declaratory judgment. The trial court ruled that West American was liable to Cincinnati for an equitable share of Cincinnati's expenses in the defense and settlement of a personal injury action filed in the circuit court of Will County. West American's equitable share was determined to be $29,384.50, and judgment was subsequently entered against West American in that amount. We affirm.

In 1989, Lorren Kessel filed a personal injury lawsuit in the circuit court of Will County (the underlying action). The underlying action arose out of injuries Kessel sustained while performing construction work at the Lockport train station. Among the defendants named in the underlying action were Baird Land Surveyors (Baird) and William Grady, doing business as B&D Home Repair and Builders (B&D).

Cincinnati had issued an insurance policy to another contractor on the project, Champion Drywall. This policy named Baird as an additional insured. Upon receipt of service of process in the underlying action, Baird tendered the action to its own insurer, which, in turn, tendered the defense to Cincinnati. Cincinnati then retained counsel to defend Baird in the underlying action.

West American had issued an insurance policy to B&D. Pursuant to this policy, West American retained counsel to defend B&D in the underlying action. This policy also named Baird as an additional insured. Baird, however, was not aware that it was an additional insured under the West American policy.

During the course of litigation, Baird propounded interrogatories to B&D which specifically requested that B&D identify the name of each insured under the West American policy. In response to this inquiry, B&D failed to disclose that Baird was named as an additional insured. Baird also requested that B&D produce a copy of the West American policy. Although B&D responded to the production request, it did not provide a copy of the policy endorsement that named Baird as an additional insured. B&D's responses to these discovery requests were signed by the attorney retained by West American to defend B&D in the underlying action.

The underlying action was scheduled for trial on three separate occasions. On January 27, 1992, which was the third trial date, B&D's attorney turned over a document to Baird's attorney which disclosed that Baird was named as an additional insured under the West American policy. Following this disclosure, Baird's attorney discussed the matter with Baird's president, Barbara Baird, and then immediately tendered the defense to West American. West American rejected the tender.

On February 17, 1992, the underlying action was settled between the parties. Cincinnati paid Kessel $30,000 on Baird's behalf, and West American paid Kessel $30,000 on B&D's behalf. Prior to settlement, Cincinnati and West American entered into a stipulation reserving Cincinnati's right to pursue a contribution action against West American for reimbursement of the settlement amount, as well as its attorney fees in defending Baird in the underlying action.

On June 25, 1993, Cincinnati filed the instant action against West American seeking a declaration that, pursuant to the doctrine of equitable contribution, West American was obligated to reimburse Cincinnati for the defense costs and indemnity payments which it made on behalf of Baird in the underlying action. On January 4, 1995, Cincinnati filed a motion for summary judgment. In support of its motion, Cincinnati attached the affidavit of Barbara Baird. In her affidavit, Barbara Baird averred that (1) a company named AVA handled all of Baird's insurance matters; (2) she had never had any insurance training or classes dealing with insurance; (3) she was unaware that Baird was listed as an additional insured under the West American policy until January 27, 1992; and (4) she considered B&D responsible for the accident at the construction site and preferred to have B&D's insurance pay for Baird's defense and settlement.

On January 12, 1996, West American filed a response to Cincinnati's motion for summary judgment, along with its own cross-motion for summary judgment. On January 17, 1996, West American also filed a motion to strike the affidavit of Barbara Baird, alleging that is was conclusory and without foundation.

On April 8, 1996, after a hearing on these motions, the trial court granted Cincinnati's motion for summary judgment and denied West American's cross-motion for summary judgment. As to West American's motion to strike Barbara Baird's affidavit, the trial court stated that it would only utilize "those aspects of the affidavit that complied with the rules." The trial court's order provides, in pertinent part:

"(1) The court, aware of defendant's motion to dismiss the affidavit of Barbara Baird and the response thereto, utilized those aspects of the affidavit ...


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