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Atlantic Casualty Insurance Company v. Paszko Masonry

May 24, 2012


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiff Atlantic Casualty Insurance Co. ("Atlantic") and Defendants Prince Contractors, Inc. ("Prince") and 4292 Forest, LLC ("Forest") have filed cross-motions for summary judgment; defendants Chicago Masonry Construction Inc. ("Chicago Masonry") and Robert Rybaltowski have also moved to join their co-defendants' motion.*fn1 For the reasons set forth below, the court denies the defendants' motion and grants Atlantic's motion.


The following facts are undisputed. In 2007, Prince and Forest-acting as general contractor and developer, respectively-were constructing residential units at 4929 Forest Avenue in Downers Grove, Illinois (hereinafter "the Project"). On September 21, 2007, Peter Koshiba picked up Robert Rybaltowski in the morning to drive to the Project. Rybaltowski was employed with Raincoat Solutions, a waterproofing business owned by Koshiba. Koshiba had submitted a bid to perform caulking work at the Project to Michael Prince, but Koshiba understood that he needed to have the caulk color and the quality of his work approved before he had the job. Koshiba had prepared a contract, but that contract had yet to be executed. Koshiba testified that he and Rybaltowski were at the Project to do a "mockup" job. If his mockup work was not approved, Koshiba understood that he would not be coming back to the Project. Koshiba did not expect to be paid for preparing or submitting his bid, nor did he expect to be paid for preparing the mockups, although Koshiba would pay Rybaltowski for his work on the Project.

Koshiba and Rybaltowski arrived at the Project at around 8:00 a.m. They took some tools and supplies and started doing mockup work. Koshiba testified that after they finished creating mockups with different caulk colors, they went to look for Michael Prince to get his approval. Before they could find him, Rybaltowski was injured when Paszko Masonry, Inc. ("Paszko")*fn2 -a contractor doing masonry work at the Project- allegedly caused a silo or a support to fall and hit Rybaltowski. Rybaltowski left the Project due to his injuries, and it was not until thirty or forty minutes after Rybaltowski left that the contract between Raincoat Solutions and Prince was executed.

Rybaltowski filed Case No. 09 L 4011 in the Law Division of the Circuit Court of Cook County (the "Rybaltowski Lawsuit"). In the Rybaltowski Lawsuit, Rybaltowski alleged that on September 21, 2007, he was employed by "a contractor named Peter Koshiba," and that while he was acting within the scope of his employment, he was injured when Paszko caused a support to fall off of certain masonry equipment, causing Rybaltowski to suffer a closed head injury. Rybaltowski brought two negligence counts against Prince, Forest, and Chicago Masonry. He alleged that these three defendants were in control of the Project, that they each had a duty to exercise ordinary and reasonable care "for the benefit of the employees of subcontractors and the supervision of those individuals, including [Rybaltowski]," and that they breached that duty in various respects, including by failing to require Paszko to secure the area where it was lifting equipment. Rybaltowski also brought one count against Paszko, alleging that Paszko employees used the crane or hoist negligently and proximately caused Rybaltowski's injuries. Chicago Masonry in turn filed a counterclaim against Paszko, arguing that it was entitled to contribution and that Paszko had breached its contract with Chicago Masonry.

Paszko had a policy of liability insurance with Atlantic, Policy No. L11300129, which was effective from August 5, 2007 to August 5, 2008 ("the Policy"). Paszko did not tender its defense in the Rybaltowski Lawsuit to Atlantic, but Chicago Masonry, Prince and Forest did. (See Am. Compl. ¶¶ 16-17.) Chicago Masonry, Prince and Forest each claimed that they qualified as "insureds" under the terms of the Policy. Atlantic protested, arguing that they were not insureds and that in any event, no coverage was owed because Rybaltowski either was a contractor or an employee and the Policy excluded coverage for bodily injuries to such people. Atlantic filed the instant lawsuit, seeking a declaratory judgment that it has no duty to defend Paszko, Chicago Masonry, Prince or Forest in connection with the Rybaltowski Lawsuit.

The relevant terms of the Policy are as follows.

Section I -- 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 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. *** Section V -- Definitions*fn3 ***

3."Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. *** Exclusion of Injury to Employees, Contractors, and Employees of Contractors Exclusion e. Employer's Liability of Coverage A. Bodily Injury and Property Damage Liability ...

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