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National Union Fire Insurance Co. of Pittsburgh, Pennsylvania v. R. Olson Construction Contractors

April 18, 2002

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, PLAINTIFF-APPELLANT,
v.
R. OLSON CONSTRUCTION CONTRACTORS, INC., D/B/A R. OLSON CONCRETE CONSTRUCTION; LEROY SCHMIDT, AND DONNA SCHMIDT, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 99-MR-0941 Honorable Bonnie M. Wheaton, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

UNPUBLISHED

In December 1999, plaintiff, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National), filed a complaint for a declaratory judgment against R. Olson Construction Contractors, Inc., d/b/a R. Olson Concrete Construction (Olson), and Leroy and Donna Schmidt (the Schmidts). National sought a determination that it was not obligated to defend or indemnify Olson in an action brought by the Schmidts (Schmidt action or underlying action) against Olson for injuries Leroy Schmidt (Schmidt) suffered at a construction site while an employee of Meyer Material Company (Meyer).

National had issued a comprehensive general liability policy in which Meyer was an insured and Olson was named in an endorsement as an additional insured with respect to liability arising out of Meyer's operations for Olson. The endorsement specified that the policy would not cover Olson's liability arising from its own negligence or that of its servants, agents, or employees. Olson was a concrete subcontractor for the construction project and contracted with Meyer to have Meyer deliver concrete to the construction site. Meyer employed Schmidt as a driver of one of its concrete delivery trucks. Schmidt was allegedly injured when he fell down while washing down his ready mix concrete truck inside a building at the project site.

Schmidt filed a complaint (underlying complaint) against Olson and others, alleging that various negligent acts or omissions on the part of Olson caused Schmidt's injuries. Based on the same allegations, the underlying complaint also sought damages from Olson, claiming that Donna Schmidt, Leroy's wife, suffered a loss of consortium. Meyer was not named as a defendant in the underlying complaint. Olson tendered the defense of the Schmidt action to National, which declined the tender. Olson in turn filed a third-party complaint for contribution among tortfeasors against Meyer pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/1 et seq. (West 1998)). The third-party complaint alleged that Meyer was guilty of the negligent acts or omissions that proximately caused Schmidt's injuries and that, if Olson should be found liable to the Schmidts for the injuries alleged in the underlying complaint, it will be because of the wrongful actions and omissions of Meyer and Olson would be entitled to contribution should a judgment for damages be entered against Olson.

National and Olson filed cross-motions for summary judgment. National's position, in essence, was that it should not be required to defend Olson in the underlying action because Olson could only be found liable if its own negligence proximately caused Schmidt's injuries and the National policy excluded coverage for Olson's liability if it resulted from Olson's own negligence. The trial court granted Olson's motion, however, concluding that, even if Olson were found liable in the Schmidt action for Olson's own negligence, some portion of Schmidt's possible award could potentially be attributable to acts arising out of Meyer's ongoing operations performed for Olson; therefore, National had a duty to defend Olson in the Schmidt action. Olson timely appeals. We conclude that National does not have a duty to defend Olson, and we reverse the judgment.

The record shows that there was an additional insured endorsement entitled "ADDITIONAL INSURED--OWNERS, LESSEES OR CONTRACTORS (FORM B)" that modified the insurance provided under the policy. The endorsement stated:

"This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE

Name of Person or Organization:

CERTIFICATE HOLDERS LISTED ON FILE WITH THE INSURANCE COMPANY. ADDITIONALLY, COVERAGE SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE CERTIFICATE HOLDER'S OWN NEGLIGENCE OR THE NEGLIGENCE OF ITS SERVANTS, AGENTS OR EMPLOYEES.

***

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ...


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