The opinion of the court was delivered by: Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Nautilus Insurance Company filed this declaratory-judgment
action*fn1 to determine whether it has a duty to defend
or indemnify Jona Enterprises, Inc. or Joseph Komes against a
state-court wrongful death action filed by Defendant Osvaldo Pastrana
as the administrator of Paulino Pastrana's estate. Defendant Pastrana
filed the state-court action against entities that are defendants in
this action too: Joseph Cacciatore & Company; Marquette National Bank
as Trustee of Trust #14-803; 1100
Hunter Company; and 1100 West Cermak Property, Inc.*fn2
In this action, Nautilus moves for summary judgment. R. 82.
Of the seven named defendants, only three have responded to Nautilus's
motion: Marquette National Bank, 1100 Hunter Company, and 1100 West
Cermak Property (collectively, the "Marquette Defendants").*fn3
R. 103. The Marquette Defendants filed a cross-motion for
summary judgment. R. 113. For the reasons discussed below, Nautilus's
motion is granted, and the Marquette Defendants' motion is
In deciding the parties' cross-motions for summary judgment, the Court views the evidence in the light most favorable to the respective non-moving party. In July 2005, Nautilus issued a commercial general liability insurance policy to Jona Enterprises, a construction company. R. 85, Pl.'s Stmt. of Material Facts (PSOF) ¶¶ 16, 22-23. The policy was effective for one year. Id. ¶ 23. In December 2007, Osvaldo Pastrana filed a state-court action against several defendants, including Joseph Cacciatore & Company; Marquette National Bank as Trustee of Trust #14-803; 1100 Hunter Company; and 1100 West Cermak Property, Inc. Id. ¶ 9. The complaint in Pastrana alleges that on or about May 27, 2006, Paulino Pastrana died while performing construction work at 1100 West Cermak Road, Chicago, Illinois. Id. ¶ 10. Pastrana alleges that the named defendant-tortfeasors are liable for Paulino's death under Illinois tort law. Id. ¶ 11. (Osvaldo Pastrana is Paulino's son. R. 102-3 (Defs.' Exh. 3).)
In August 2008, Joseph Cacciatore & Company filed, in the state-court action, a third-party complaint against Jona Enterprises. PSOF ¶ 12. Cacciatore alleges that Jona was negligent in supervising Paulino Pastrana, who was allegedly Jona's employee, and, as a result, should pay Cacciatore contribution in an amount commensurate with Jona's assessed percentage of liability for Paulino's injuries. Id.
¶¶ 13-14. In November 2008, Marquette National Bank, 1100 Hunter Company, and 1100 West Cermak Property filed a third-party complaint against Jona and its alleged subcontractor, an individual named Joseph Komes. Id. ¶ 15. Marquette's third-party complaint alleges that Paulino was employed by Komes at the time of his death, and Jona and Komes were negligent for failing to supervise Paulino and/or to provide him with safe working conditions (among other things). Id. ¶ 16. Like Defendant Cacciatore, the Marquette Defendants allege that in the event Pastrana recovers from the Marquette Defendants, the Marquette Defendants are entitled to contribution from Jona and Komes in an amount commensurate with Jona and Komes's respective assessed percentages of liability. Id. ¶¶ 16-17.
Gina Prima, the owner of Jona Enterprises, tendered the Cacciatore and
Marquette third-party complaints to Nautilus for coverage. R. 115,
Defs.' Stmt. of
Material Facts (DSOF) ¶¶ 22, 24. In October 2008, Nautilus issued a
reservation of rights letter to Prima, stating that Nautilus did not
believe that the policy covered Jona in connection with the Pastrana
action or the Cacciatore third-party complaint. Id. ¶ 25.*fn4
Nautilus then filed this declaratory judgment action in July
2009. R. 1.
Nautilus seeks a declaration that it owes no duty to defend or indemnify Jona or Komes against the underlying Pastrana action pending in Illinois state court. R. 1
¶ 34. Nautilus contends that the insurance policy it issued to Jona does not cover the claims against Jona in the Pastrana action. Id. ¶¶ 28-31. Specifically, because Paulino Pastrana was Jona's employee, the policy's "Employee Exclusion" precludes any potential or actual coverage for the lawsuit. Id. ¶ 28. Nautilus further claims that the result would not be different even if Paulino was considered Komes's employee because the policy's "Contractors and Subcontractors Exclusion" would preclude coverage in that case. Id. ¶ 29.
Nautilus has filed a motion for summary judgment. R. 82. The Marquette Defendants were the only named defendants to respond to Nautilus's motion. See R. 103. The Marquette Defendants also filed a cross-motion for summary judgment, seeking a declaration that Nautilus does have a duty to defend and indemnify Jona and Komes in the underlying Pastrana action. R. 113.
Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The same standard applies to cross-motions for summary judgment. Int'l Bhd. of Elec. Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 404 (7th Cir. 2002). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008).
In this diversity action, state law governs the substance of Nautilus's claim. See Integrated Genomics v. Gerngross, 636 F.3d 853, 861 (7th Cir. 2011). The parties assume that Illinois law governs, and the Court will proceed on that basis.*fn5 See Health Care Indus. Liability Ins. ...