Court of Appeals of Illinois, First District, Third Division
CERTAIN UNDERWRITERS AT LLOYD'S LONDON, Subscribing to Certificate No. RTS000275-4, Plaintiff-Appellee and Cross-Appellant,
METROPOLITAN BUILDERS, INC.; and AIG PROPERTY CASUALTY COMPANY, as Subrogee of 1903 Schiller, LLC, Defendants (Metropolitan Builders, Inc., Defendant-Appellant and Cross-Appellee).
from the Circuit Court of Cook County 18 CH 1180. Honorable
Franklin U. Valderrama, Judge Presiding
Attorneys for Appellant: David E. Schroeder, of Tribler
Orpett & Meyer, P.C., of Chicago, for appellant.
Attorneys for Appellee: Neal R. Novak and Karen Andersen
Moran, of Novak Law Offices, of Chicago, for appellee.
PRESIDING JUSTICE ELLIS delivered the judgment of the court,
with opinion. Justices McBride and Cobbs concurred in the
judgment and opinion.
1 Metropolitan Builders, Inc. (Metropolitan), appeals the
circuit court's order finding that Certain Underwriters
at Lloyd's London, Subscribing to Certificate No.
RTS000275-4 (Lloyd's), did not have a duty to defend
Metropolitan in an underlying case. In its order granting
summary judgment to Lloyd's, the court found that the
complaint in the underlying case alleged "property
damage" but did not allege an "occurrence"
within the meaning of the insurance policy.
2 We hold that the underlying complaint alleged both an
"occurrence" and "property damage" under
the policy. Metropolitan was thus entitled to a defense from
Lloyd's of the underlying lawsuit. We reverse the trial
court's judgment and remand for further proceedings.
4 A. General Facts
5 Metropolitan was hired as the general contractor for a
construction job on property in Chicago. During the
construction, a wall adjoining two structures collapsed. The
amount of structural damage ultimately led the City of
Chicago (the City) to declare the structures unsafe and
6 The owner of the building turned to its insurer, AIG
Property Casualty Company (AIG), for indemnification and
reimbursement for the damages it suffered. AIG paid the owner
"a sum of over $1, 802, 479.88 for repairs, demolition,
construction, and other associated expenses arising
from" the collapse.
7 AIG then invoked its rights of subrogation and filed suit
against Metropolitan, the general contractor on the
construction job (the Underlying Case). We draw our more
detailed facts below from AIG's complaint in that action
(the Underlying Complaint).
8 B. The Underlying Complaint
9 Metropolitan was hired as the general contractor for
"construction, renovation, demolition, and/or other
related activities" at contiguous properties on the 1900
block of West Schiller Street in Chicago-the 1907 Property,
1909 Property, and 1911 Property (collectively, the
10 As of October 2016, Metropolitan had obtained a permit
from the City to perform construction activity to convert the
1909 and 1911 Properties into single-family dwellings. But as
of that time, the City had not given Metropolitan a permit to
perform construction activity of any kind on the 1907
11 In October 2016, the structures on the 1907 Property and
1909 Property collapsed. We do not know a great deal about
how this collapse occurred. The allegations are that
Metropolitan had "constructed a new wooden framing
building and removed portions of the stairway within [the
1907 Property], without the authorization of a permit, in
addition to altering the structural integrity and lower level
supports of [the 1907 and 1909 Properties]."
12 In any event, the entire existing structures at the 1907
and 1909 Properties collapsed. The collapse caused
significant damage to the Properties, "including in
areas where [Metropolitan] was not conducting work." The
existing structures on the Properties were later deemed
unsafe and demolished by the City.
13 The Underlying Complaint alleged warranty and contract
claims, as well as various tort claims, against Metropolitan.
The various tort claims each alleged that, "[a]s a
result of the aforementioned negligence, [the property owner]
suffered losses including, but not limited to, damage to
[its] real and personal property."
14 C. The Declaratory Judgment Action Before This Court
15 Metropolitan tendered defense of the Underlying Case to
its insurer, Lloyd's. Lloyd's denied coverage and
filed this declaratory judgment action, seeking a declaration
that it owed no duty to defend Metropolitan. In its motion
for summary judgment, Lloyd's argued that, while its
insurance policy with Metropolitan required Lloyd's to
defend Metropolitan for claims of liability resulting from
"property damage" caused by an
"occurrence," the allegations of the Underlying
Complaint alleged neither "property
damage" nor an "occurrence."
16 The trial court disagreed in part with Lloyd's, ruling
that the Underlying Complaint adequately alleged
"property damage." But the court agreed that the
Underlying Complaint failed to allege an
"occurrence" as defined by the insurance policy and
thus entered summary judgment in favor of Lloyd's.
17 Metropolitan appeals, claiming that summary judgment for
Lloyd's was inappropriate, as the Underlying Complaint
alleged an "occurrence" as well as "property
damage." Lloyd's not only urges affirmance on the
basis that the trial court's ruling on the definition of
"occurrence" was correct, but it also has
cross-appealed as a backstop, arguing that summary judgment
could be affirmed for the additional reason (contrary to the
trial court's ruling) that the Underlying Complaint did
not allege "property damage," either.
19 Our mention of the cross-appeal filed by Lloyd's leads
us to a jurisdictional matter that we have an independent
duty to address, even if the parties do not. See
Lakeshore Center Holdings, LLC v. LHC Loan,
LLC, 2019 IL App (1st) 180576, ¶ 9.
20 Lloyd's cross-appeals from the trial court's
ruling that the Underlying Complaint alleged "property
damage." That cross-appeal is improper, because
Lloyd's received all the relief it sought below-a grant
of summary judgment in its favor. A party granted summary
judgment may not appeal that order. Chicago Tribune v.
College of Du Page, 2017 IL App (2d) 160274, ¶ 28
("Where the circuit court grants summary judgment in
favor of a party, that party cannot file a cross-appeal to
seek relief from the summary judgment order.").
21 We understand that Lloyd's is cross-appealing out an
abundance of caution, a belt-and- suspenders approach. In the
event we disagreed with the trial court's stated reason
for finding no duty to defend-the lack of any allegation of
an "occurrence"-Lloyd's would have us affirm on
the secondary ground that no "property damage" was
alleged, even though the trial court ruled otherwise on that
22 Still, the avenue of a cross-appeal is improper."
'It is fundamental that the forum of courts of appeal
should not be afforded to successful parties who may not
agree with the reasons, conclusion or findings
below.'" Material Service Corp. v. Department of
Revenue, 98 Ill.2d 382, 386 (1983) (quoting Illinois
Bell Telephone Co. v. Illinois Commerce Commission, 414
Ill. 275, 282-83 (1953)). We must dismiss the cross-appeal.
23 But this is a pyrrhic defeat only, as Lloyd's remains
free to argue that the trial court's order should be
affirmed based on the definition of "property
damage" as well as "occurrence." We may affirm
the judgment of the trial court on any basis in the record,
regardless of whether it was the trial court's stated
reason. Material Service Corp., 98 Ill.2d at 387.
Indeed, that's precisely why a cross-appeal is both
improper and unnecessary-because the appellee may raise this
additional basis for affirmance on direct appeal. Id.;
Chicago Tribune, 2017 IL App (2d) 160274, ¶ 28.
24 So the cross-appeal is dismissed, but we will consider the
arguments of Lloyd's regarding the definition of
"property damage" as an ...