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Wiseman-Hughes Enterprises, Inc. v. Harleysville Lake States Insurance Co.

April 8, 2009

WISEMAN-HUGHES ENTERPRISES, INC., PLAINTIFF/COUNTER-DEFENDANT,
v.
HARLEYSVILLE LAKE STATES INSURANCE COMPANY, DEFENDANT/COUNTER-PLAINTIFF.



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

Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Wiseman-Hughes Enterprises, Inc. brought a four count complaint against its insurer, defendant Harleysville Lake States Insurance Company, alleging that defendant: breached the insurance contract (Count I); breached the common-law duty of good faith and fair dealing implied in all contracts (Count II); and vexatiously and unreasonably refused coverage in violation of 215 ILCS § 5/155 (Count III). Count IV seeks a declaration that defendant is estopped from denying liability because defendant never filed a declaratory judgment action seeking a declaration that its denial of coverage and refusal to defend was appropriate. Defendant subsequently filed a counterclaim (titled "counter-complaint"), seeking a declaration it owed no duty to defend plaintiff (Count I) and no duty to indemnify the plaintiff(Count II).

Plaintiff has moved for summary judgment on its complaint, and defendant has moved for summary judgment on the counterclaims. For the reasons explained below, the court denies both motions for summary judgment.

STATEMENT OF FACTS

Plaintiff, an Illinois corporation, is a home-builder in the Chicago area. Defendant, a Michigan corporation, is an insurance provider. From June 1, 2005, to June 1, 2006, plaintiff contracted with defendant for commercial general liability ("CGL") coverage. The coverage section of the policy provides in pertinent part:

SECTION 1 - COVERAGES COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against and "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. ...

b. This insurance applies to "bodily injury" and "property damage" only if:

(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; and

(2) The "bodily injury" or "property damage" occurs during the policy period. ...

2. Exclusions

This insurance does not ...


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