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AMCO Ins. Co. v. Cincinnati Ins. Co.

Court of Appeals of Illinois, First District, First Division

May 5, 2014

AMCO INSURANCE COMPANY, Plaintiff-Appellant,
v.
CINCINNATI INSURANCE COMPANY, Defendant-Appellee

Appeal from the Circuit Court of Cook County. No. 11 CH 41151. Honorable Mary Anne Mason, Judge Presiding.

SYLLABUS

In an appeal arising from an underlying action for the injuries suffered by an employee on a construction project, the appellate court rejected plaintiff insurer's argument that the targeted tender doctrine gave plaintiff the right, after being designated by the insured in the instant case to provide coverage for the underlying claim and paying the settlement of the claim, to seek contribution from an unselected insurer pursuant to an assignment of the insured's rights, since the insured had no rights to assign to plaintiff after plaintiff paid the full amount of the settlement of the underlying claim.

Lindemann, Miller, Siderius, LLP, Chicago, Illinois, Jeffrey A. Siderius, of counsel, for appellant.

Tribler, Orpett & Meyer, P.C., Chicago, Illinois, David Schroeder, of counsel, for appellee.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Delort concurred in the judgment and opinion.

OPINION

Page 375

CUNNINGHAM, JUSTICE.

[¶1] This appeal arises from an August 24, 2012 order entered by the circuit court of Cook County which granted defendant-appellee Cincinnati Insurance Company's (Cincinnati) motion to dismiss with prejudice. The trial court's order was entered pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). On appeal, plaintiff-appellant AMCO Insurance Company (AMCO) argues that the trial court erred in granting Cincinnati's motion to dismiss. For the following reasons, we

Page 376

affirm the judgment of the circuit court of Cook County.

[¶2] BACKGROUND

[¶3] On March 15, 2007, Kevin Smith (Smith) filed a complaint (Smith lawsuit) in the circuit court of Cook County against Hartz Construction Company (Hartz), Cimarron Construction Company, Inc. (Cimarron), and Van Der Laan Brothers, Inc. (Van Der Laan), under case number 07 L 2729. Smith sought damages for injuries he suffered while working on a construction site at Manchester Cove Subdivision in Mokena, Illinois. At the time of his injuries, Smith was employed by Edward Allen Construction (Edward Allen), a subcontractor working on the project at the construction site. Hartz was the general contractor, Cimarron was the carpentry subcontractor, and Van Der Laan was the concrete subcontractor.

[¶4] As a result of Smith's injuries, multiple insurance policies were triggered. Cincinnati issued a general liability policy to Hartz (Cincinnati policy); Erie issued a general liability policy to Van Der Laan (Erie policy); and AMCO issued both a primary general liability policy (AMCO policy) and an umbrella policy (AMCO umbrella policy) to Cimarron. On May 7, 2008, Hartz, as an additional insured under the AMCO policy, tendered its defense of the Smith lawsuit to Cimarron. The Hartz defense tender stated:

" On behalf of [Hartz] we are hereby tendering to [Cimarron] and [AMCO] its defense in the [Smith lawsuit] currently pending in the Circuit Court of Cook County Illinois. This tender is being made pursuant to [Hartz's] status as an additional insured under [the AMCO policy] issued to Cimarron ***.
This tender is made to [AMCO] without recourse to [Hartz's] own policy of insurance with [Cincinnati] except as standby coverage should [Cimarron] not fulfill its obligations pursuant to its insurance coverage. It is the expressed intention of [Hartz] that it be provided with insurance coverage for the [Smith lawsuit] solely though the insurance policy issued to [Cimarron] by [AMCO]."

[¶5] AMCO accepted Hartz's defense tender subject to a reservation of rights. On December 2, 2009, Hartz also tendered its defense of the Smith lawsuit to Erie, as an additional insured under the Erie ...


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