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Nautilus Insurance Company v. Jdl Development

April 4, 2012

NAUTILUS INSURANCE COMPANY, PLAINTIFF,
v.
JDL DEVELOPMENT, IX, LLC, JDL CONTRACTORS, LLC, DEARBORN-ELM CONDOMINIUM ASSOCIATION, NAUTILUS INSURANCE COMPANY, DEFENDANTS.
FIREMAN'S FUND INSURANCE COMPANY OF OHIO, PLAINTIFF-INTERVENOR,
v.
NAUTILUS INSURANCE COMPANY, DEARBORN-ELM CONDOMINIUM ASSOCIATION, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, DEFENDANTS.
DEARBORN-ELM CONDOMINIUM ASSOCIATION, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, COUNTER-PLAINTIFF,
v.
NAUTILUS INSURANCE COMPANY, AN ILLINOIS CORPORATION, FIREMAN'S FUND INSURANCE COMPANY OF OHIO, COUNTER-DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Nautilus Insurance Company brought this action seeking a declaration that it has no duty to defend or indemnify its insureds, JDL Development, IX, LLC and JDL Contractors (jointly "JDL") in connection with a lawsuit filed against JDL in the Circuit Court of Cook County, Illinois by defendant-counterplaintiff Dearborn-Elm Condominium Association (the "Association"). JDL has defaulted, but the Association, as a third party beneficiary of the general contractor liability insurance policies issued by plaintiff to JDL, has assumed the burden of establishing that the Association's lawsuit is covered by the policies. The parties have filed cross-motions for summary judgment supported by a joint statement of undisputed facts. For the reasons described below, plaintiff's motion for summary judgment is granted, the Association's motion for summary judgment is denied, and the court declares that plaintiff has no duty to defend or indemnify JDL in connection with the Association's lawsuit.

BACKGROUND

Plaintiff Nautilus is an Arizona insurance company. JDL Development and JDL Contracting are Illinois limited liability companies located in Chicago. Jim Letchinger is the owner and member of JDL. The Association is a not-for-profit association and was joined in the instant action as a necessary party defendant.

The property in question is improved by a high-rise residential building constructed in or about 2002-03 by JDL. Plaintiff issued a series of one year commercial line insurance policies to JDL starting effective April 3, 2001, through March 31, 2005. The policy limits were $1 million per occurrence and $2 million general aggregate for the 01-02 policy, and $5 million each occurrence and $5 million general aggregate for the 02-03, 03-04 and 04-05 policy periods. The policies contain the following provisions:

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 any "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";

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

The policies require the insured (JDL) to give notice of an occurrence "as soon as practicable." Specifically, the policies provide:

2. Duties in the Event of Occurrence, Offense, Claim or Suit

a. You must see to it that we are notified as soon as practicable of an "occurrence" or offense which may result in a claim . . .

b. If a claim is made or "suit" is brought against any insured, you must:

(1) Immediately record the specifics of the claim or "suit" and the ...


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