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Nautilus Insurance Company v. Glenn Gutnayer Construction

February 7, 2011

NAUTILUS INSURANCE COMPANY, PLAINTIFF,
v.
GLENN GUTNAYER CONSTRUCTION,INC. AND ARNULFO VALDOVINOS, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Nautilus Insurance Company ("Nautilus") has sued Glenn Gutnayer Construction, Inc. ("GGC") and Arnulfo Valdovinos, seeking a declaratory judgment that Nautilus has no duty to defend or indemnify GGC in connection with a lawsuit filed in state court by Valdovinos against GGC. GGC has counterclaimed for a declaratory judgment that Nautilus has a duty to defend and indemnify GGC in the Valdovinos lawsuit. The Court has jurisdiction based on diversity of citizenship.

Nautilus has moved for summary judgment. In response, GGC asks the Court to deny Nautilus's motion, grant GGC declaratory relief, dismiss as unripe Nautilus's claim for declaratory relief as to indemnity, and enter an order requiring Nautilus to reimburse GGC for the attorney's fees and costs it has incurred in both lawsuits.

For the reasons stated below, the Court denies Nautilus's motion, grants declaratory relief to GGC, dismisses Nautilus's indemnity claim as premature, and denies in part GGC's claim for fees and costs.

Background

GGC is a residential real estate developer. It has no employees or equipment but instead hires subcontractors to perform its work. GGC owned and developed a single-family home located at 1590 Hawthorne Lane in Highland Park, Illinois ("1590 Hawthorne").

In 2008, GGC purchased an insurance policy from Nautilus to protect itself against potential liability arising out of its operations at 1590 Hawthorne between February 1, 2008 and February 1, 2009. The policy required Nautilus to "pay those sums that [GGC] becomes legally obligated to pay as damages because of 'bodily injury' . . . to which this insurance applies." Pl.'s Rule 56.1 Stmt., Ex. E at 10 ("Pl.'s Stmt."). The policy defined "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." Id. at 21.

The policy included an endorsement entitled "Exclusion -- Injury to Employees, Contractors, Volunteers and Workers" (the "employee exclusion") that contained the following language:

This insurance does not apply to:

e. Employer's Liability "Bodily injury" to:

(1) An 'employee' of any insured arising out of and in the course of:

(a) Employment by any insured; or

(b) Performing duties related to the conduct of any insured's business; or

(2) The spouse, child, parent, brother or sister of that "employee" as a consequence ...


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