Court of Appeals of Illinois, First District, Fifth Division
In a declaratory judgment action seeking a determination that plaintiff insurer was not obligated to defend defendant steel company as an additional insured under the policy obtained by a subcontractor in an underlying action for the injuries suffered by one of the subcontractor’s employees, the trial court properly entered summary judgment for the steel company, since an examination of the subcontract showed that the parties intended that the steel company would be potentially exposed to vicarious liability that would be covered under the subcontractor’s policy, and the third-party complaints in the underlying action alleged that the subcontractor’s negligence was the cause of its employee’s injuries, thereby raising the possibility that the steel company was vicariously liable for that negligence
Appeal from the Circuit Court of Cook County, No. 09-CH-46757; the Hon. Sophia Hall, Judge, presiding.
Counsel on Keith Carlson,
of Carlson Law Offices, of Chicago, for appellant.
William Busse, Jr., and Jesse E. DeVore, both of Busse, Busse & Grasse, P.C., of Chicago, for appellees.
Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.
¶ 1 Plaintiff Illinois Emcasco Insurance Company (Emcasco) filed a declaratory judgment action in November 2009 asking the trial court to declare that it had no duty to defend defendant Waukegan Steel Sales, Inc. (Waukegan), in the underlying personal injury suit filed by an employee of Waukegan's subcontractor. Emcasco argued that the complaint alleged only direct negligence on the part of Waukegan, which was outside the scope of Waukegan's coverage as an additional insured on its subcontractor's policy with Emcasco.
¶ 2 Waukegan filed a counterclaim seeking declaratory judgment that Emcasco had a duty to defend. The trial court granted summary judgment in October 2011 for Waukegan, finding that Emcasco had a duty to defend Waukegan in the underlying personal injury lawsuit. Emcasco subsequently filed this appeal challenging the trial court's finding. For the reasons that follow, we affirm the judgment of the trial court.
¶ 3 BACKGROUND
¶ 4 On June 15, 2009, Waukegan sent Emcasco a letter tendering the defense and indemnity in relation to the underlying lawsuit filed by John Walls (Walls) against Waukegan for injuries he sustained in October 2007 while working for I-MAXX Metalworks, Inc. (I-MAXX), on the Minooka High School construction site. Walls was injured when a stair stringer and/or perimeter cable protection failed, which caused him to fall while he was working in his capacity as an I-MAXX employee. In March 2009, Walls filed an amended complaint asserting one count against Waukegan alleging that he was injured due to Waukegan's negligence in failing to properly manage, operate, and maintain the premises, not performing reasonable inspections, failing to provide a safe workplace, and failing to have or maintain proper fall protection among others.
¶ 5 Waukegan's letter referenced the subcontract agreement that Waukegan and I-MAXX entered into May 2007. That subcontract agreement provides:
"I-MAXX is solely responsible for the means, methods and safety of its employees while on the jobsite. Waukegan assumes no liability for the supervision of erectors men and equipment. I-MAXX is to provide a competent supervisor while performing their work. This project will require multiple mobilizations."
The contract also required I-MAXX to obtain and maintain insurance under which Waukegan would be a covered as an additional insured for bodily injury, property damage or personal and advertising injuries caused by I-MAXX's acts or omissions. Emcasco was the provider of the insurance obtained by I-MAXX. The policy provides coverage for an additional insured "with respect to operations performed under or incident to this contract." ...