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Scottsdale Insurance Co. v. Polo Masonry Builders, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 25, 2018

SCOTTSDALE INSURANCE COMPANY, Plaintiff,
v.
POLO MASONRY BUILDERS, INC., JENNY BUILDERS, INC., ART GUREVICH, 2450 N. CLYBOURN LLC., and ANTONIA LOPEZ, as Special Administrator of the Estate of ROMAN IATSYSHYN, Deceased, Defendants.

          OPINION AND ORDER

          SARA L. ELLIS UNITED STATES DISTRICT JUDGE.

         In February 2017 at a construction site in Lincoln Park, a cinder block hit Roman Iatsyshyn in the head and killed him. Defendant Antonia Lopez, as special administrator of Iatsyshyn's estate, filed a personal injury suit in Illinois state court (“State Suit”) against Defendants Jenny Builders, Inc. (“Jenny”), Art Gurevich, 2450 N. Clybourn LLC (“2450 N. Clybourn”), and Polo Masonry Builders, Inc. (“Polo”). Plaintiff Scottsdale Insurance Company (“Scottsdale”), Polo's liability insurer, then filed this action seeking a declaratory judgment that it has no duty to defend or indemnify any of the Defendants. Lopez moves to dismiss or stay the case, arguing that the Wilton-Brillhart and Peppers doctrines require this Court to refrain from resolving this dispute until the underlying State Suit has been decided. Jenny, Gurevich, and 2450 N. Clybourn (collectively, the “Jenny Defendants”) also move to dismiss or stay the case pursuant to the same theories, and they join Lopez's motion as well. Because the Court finds that Scottsdale could prevail on its Injury to Worker Exclusion duty to defend claims without requiring the Court to decide central issues in the State Suit, it denies both motions to dismiss or stay with regard to those claims. However, as none of the Defendants have been found liable in the State Suit yet, Scottsdale's indemnification claims are not yet ripe and so the Court dismisses those claims. Finally, because the Court agrees that it could not decide Scottsdale's Employer's Liability Exclusion duty to defend claim without deciding questions raised in the State Suit, it grants Lopez and the Jenny Defendants' motion to stay with regard to that claim.

         BACKGROUND

         Scottsdale issued Polo a commercial general liability insurance policy (the “Policy”) for the January 29, 2017 through January 29, 2018 time period. Two aspects of the Policy are especially relevant to this case: (1) which entities the Policy covers, and (2) what types of bodily injury the Policy covers. First, with regard to which entities the Policy covers, it states that those who are insured includes “any person or organization for whom [Polo is] performing operations when [Polo] and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on [Polo's] policy.” Doc. 56-1 at 33.

         Second, with regard to what types of bodily injury are covered, the Policy provides that:

[Scottsdale] will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” . . . to which this insurance applies. . . . However, [Scottsdale] will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” . . . to which this insurance does not apply.

         Id. at 16. The Policy contains an endorsement that modifies the insurance for “bodily injury” called the “Injury to Worker Exclusion.” Under the Injury to Worker Exclusion, the Policy replaces the exclusion of employer's liability for bodily injury with a slightly modified provision, which provides that the insurance does not apply to:

e. Employer's Liability “Bodily injury” to:
(1) An “employee” of the insured arising out of and in the course of:
(a) Employment by the insured;
(b) Performing duties related to the conduct of the insured's business; or
(2) The spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph (1) above.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages ...

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