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Atchison, Topeka and Santa Fe Railway Co. v. St. Paul Surplus Lines Insurance Co.

March 11, 2002

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, PLAINTIFF-APPELLANT,
v.
ST. PAUL SURPLUS LINES INSURANCE COMPANY, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 96 CH 12608. Honorable Robert V. Boharic Judge Presiding.

The opinion of the court was delivered by: Justice Tully.

As amended April 12, 2002

UNPUBLISHED

This appeal arises from a declaratory judgment action brought by The Burlington Northern Santa Fe Railway Company, successor in interest to The Atchison, Topeka and Santa Fe Railway Company (Santa Fe), to determine whether defendant St. Paul Surplus Lines Insurance Company (St. Paul) has an obligation to defend and indemnify Santa Fe in four underlying personal injury lawsuits against Santa Fe. The circuit court granted summary judgment in favor of St. Paul finding that, based on the insurance policy's employer's liability exclusion, St. Paul had no duty to defend or indemnify Santa Fe for the underlying lawsuits.

Background

On September 1, 1990, Santa Fe entered into a written five year agreement with In-Terminal Services, Inc. (ITS), by which ITS was hired as an independent contractor at Santa Fe internodal terminals to load and unload the trailers and containers from the railroad flatcars and move the trailers around Santa Fe's terminal yards. ITS is a division of Mi-Jack Products, Inc. (Mi-Jack). From approximately 1990 to 1995, ITS or Mi-Jack purchased commercial general liability insurance on an occurrence basis from St. Paul. Santa Fe was added to the St. Paul policy pursuant to an endorsement providing that Additional Protected Persons include "All organizations where required by contract with the Named Insured ***".

The Insurance Policies

St. Paul issued general commercial liability policies with named insured Mi-Jack covering the period October 1, 1991 to October 1, 1994. By endorsement, ITS was also a named insured on the policies. The policies provide that Santa Fe is covered under the Additional Protected Persons endorsement.

The St. Paul policies contain the following provision:

"Separation of protected persons. This agreement applies:

•to each protected person named in the Introduction as if that protected person was the only one named there; and

•separately to each other protected person.

However, the limits of coverage shown in the Coverage Summary are shared by ...


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