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Leff Construction Rockford LLC v. United National Insurance Co.

July 9, 2007

LEFF CONSTRUCTION ROCKFORD LLC, PLAINTIFF,
v.
UNITED NATIONAL INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Leff Construction Rockford LLC ("Leff") filed a suit for breach of contract against defendant United National Insurance Company ("United National"). Plaintiff seeks a declaratory judgment that defendant must indemnify plaintiff for damages alleged in another lawsuit. Defendant United National has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons discussed below, the court grants defendant's motion.

FACTS*fn1

On August 19, 2003, Mark IV Enterprises, d/b/a Rockview Stone Company ("Rockview") entered into a contract ("Subcontract Agreement") with plaintiff for a construction project in Rockford, Illinois, to construct a senior center. The Subcontract Agreement identified plaintiff as the Contractor and Rockview as the Subcontractor. The agreement described the work to be performed by Rockview as:

Grading, water, sanitary sewer, storm sewer, concrete, asphault [sic]. Allsite grading and excavation. Pad construction. All concrete foundation sidewalks, curbs, building pad, electrical pad. Water and sanitary lines to within 5 feet of building, storm sewer, manholes. Tree removal necessary for construction, top soil needed. Asphalt parking lot, driveway, and alley for the length of property. Silt fence per plan."

The contract specified that:

SUBCONTRACTOR [Rockview] shall indemnify, defend, and save harmless the CONTRACTOR [plaintiff], owner, architect or engineer, from damages because of bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons on or account of damage to property arising out of or in consequence of the performance of the work...and SUBCONTRACTOR shall procure and maintain noncancellable Contractual Liability Insurance as security for the performance of this indemnity and hold harmless provisions in limits as hereinafter stated. CONTRACTOR shall be named as additional named insured on all policies.

The contract also specified that "Subcontractor shall procure and maintain noncancellable Contractual Liability Insurance as security for the performance of this indemnity," and it stated that plaintiff was to "be named as additional named insured on all policies."

Rockview purchased a Commercial General Liability Policy ("CGL Policy") from defendant. The CGL Policy was effective from July 1, 2003 to July 1, 2004, with Rockview as the named insured, and it provided liability limits of $1,000,000 per occurrence, with a $2,000,000 aggregate limit. The policy specified that:

[O]nly certain, very specific operations have been covered under this policy.

Subject to all of the exclusions, terms and conditions of this policy, such insurance as is afforded by the policy applies only to liability arising directly from the ownership, maintenance, or use of the following by you or the specific business operations by you as described as follows: DEMOLITION OF BUILDINGS. The CGL Policy also contained a "Blanket Additional Insured Endorsement," which stated:

"[t]he definition of INSURED is amended to include any person or organization *** to whom you are obligated by valid written contract to provide such coverage, but only with respect to liability for "bodily injury" or "property damage" arising solely out of "your work" on behalf of said additional insured for which coverage is provided by this policy.

Bernard Ammon was working for a plumber on the Rockview construction site. On November 12, 2003, he was working in a trench that was being excavated "to further the erection and construction" of a senior center when he was injured. On June 12, 2006, Bernard and Kathi Ammon sued plaintiff ...


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