                                       2017 IL App (1st) 162234
                                            No. 1-16-2234
                                           October 24, 2017

                                                                                SECOND DIVISION



                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT


     HASTINGS MUTUAL INSURANCE                       )      Appeal from the Circuit Court
     COMPANY,                                        )      Of Cook County.
                                                     )
           Plaintiff-Appellee,                       )
                                                     )      No. 14 CH 19115
           v.                                        )
                                                     )      The Honorable
     BLINDERMAN CONSTRUCTION                         )      Franklin U. Valderrama,
     COMPANY, INC., and THE ESTATE OF                )      Judge Presiding.
     ROBERT WOODS by Cynthia Sosnowski of            )
     the Estate and Person of Robert Woods,          )
                                                     )
     (BLINDERMAN CONSTRUCTION                        )
     COMPANY, INC., Defendant-Appellant.)            )


                PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                Justices Hyman and Mason concurred in the judgment and opinion.


                                             OPINION

¶1         This case raises the question of whether a subcontractor’s insurer has a duty to defend the

        general contractor, an additional insured under its policy, in a lawsuit brought by an injured

        employee of the subcontractor. In the underlying lawsuit, the Estate of Robert Woods, the

        injured employee of the subcontractor, JM Polcurr, Inc., sued the general contractor,

        Blinderman Construction Company, Inc., for negligence. The complaint included no
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        allegations about the acts of Polcurr. Polcurr’s insurer, Hastings Mutual Insurance Company,

        filed a separate lawsuit for a judgment declaring that it had no duty to defend Blinderman in

        the underlying lawsuit. The circuit court granted a motion for summary judgment in favor of

        Hastings on its complaint.

¶2         In this appeal, we hold that the absence of allegations about Polcurr in the underlying

        complaint does not suffice to meet Hastings’s burden of proving that the injury occurred

        through no fault of Polcurr. Accordingly, we reverse the judgment and remand for further

        proceedings.

¶3                                         BACKGROUND

¶4         The Public Building Commission of Chicago hired Blinderman to serve as general

        contractor for a construction project at Sauganash Elementary School. On June 22, 2010,

        Blinderman hired Polcurr to do the electrical work for the project. Blinderman’s contract

        with Polcurr required Polcurr to purchase insurance naming Blinderman as an additional

        insured for Polcurr’s work on the project. Polcurr purchased the required insurance from

        Hastings.

¶5         On July 19, 2011, Robert Woods suffered a severe injury at work on the project. He

        regained consciousness in the hospital about one month later. He has not worked since the

        accident. A court appointed Woods’s daughter, Cynthia Sosnowski, to serve as plenary

        guardian for Woods and Woods’s estate.




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¶6                      The Underlying Lawsuit: Estate of Woods v. Blinderman

¶7         In February 2014, the Estate of Woods filed a complaint against Blinderman, alleging

        that Woods fell from a ladder while working at Sauganash for Polcurr. The estate alleged that

        Blinderman

                “a. Failed to provide a safe and suitable support and platform for the work;

                b. Failed to properly supervise, coordinate, inspect, manage, control and

                schedule the work;

                c. Failed to provide a safe place of work; and

                d. Failed to warn of the dangerous condition then and there existing, when

                Defendants knew, or should have known, that warning was necessary to avoid

                injury to Plaintiff.”

¶8         Blinderman tendered defense of the lawsuit to Hastings. Hastings rejected the tender,

        citing, as a basis for the rejection, the following clause in its insurance policy:

                “With respect to the insurance afforded to these additional insureds, the

                following exclusions apply:

                ***

                *** liability arising out of the sole negligence of the additional insured or by

                those acting on behalf of the additional insured.”

¶9         Blinderman filed a third-party complaint against Polcurr, arguing that Polcurr should pay

        a share of any liability assessed against Blinderman because Polcurr failed to inspect the

        premises, improperly maintained Woods’s work area, failed to warn Woods of dangerous

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          conditions, and permitted Woods to use an unstable ladder without appropriate safety

          equipment.

¶ 10                                        Hastings’s Complaint

¶ 11         In November 2014, Hastings filed the complaint that initiated the case now on appeal.

          Hastings sought a judgment declaring that it had no duty to defend or indemnify Blinderman

          for its potential liability in Estate of Woods v. Blinderman. Blinderman and Hastings both

          filed motions for summary judgment in the declaratory judgment action.

¶ 12         Blinderman supported its motion for summary judgment with its third-party complaint

          against Polcurr and depositions of two Polcurr employees. According to the employees,

          Blinderman gave no directions to Polcurr employees about their work. Polcurr employees,

          including Woods, used only Polcurr equipment. Blinderman had a safety program and a

          safety inspector at the worksite. At times, Blinderman’s inspector directed workers for the

          subcontractors to take specific measures for their safety.

¶ 13         The circuit court held that the court could not consider the allegations of the third-party

          complaint when determining whether Hastings had a duty to defend Blinderman. The circuit

          court held that the exclusion for liability arising from Blinderman’s sole negligence applied,

          and Hastings had no duty to defend Blinderman because the underlying complaint did not

          allege or suggest that Polcurr acted negligently. Blinderman now appeals.




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¶ 14                                              ANALYSIS

¶ 15         We review de novo the order granting Hastings’s motion for summary judgment.

          Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001). Our

          supreme court set out the basic principles applicable here:

                    “If the underlying complaints allege facts *** potentially within policy

                    coverage, the insurer is obliged to defend its insured ***. An insurer may not

                    justifiably refuse to defend an action against its insured unless it is clear from

                    the face of the underlying complaints that the allegations fail to state facts which

                    bring the case *** potentially within[ ] the policy’s coverage. ***

                       The underlying complaints and the insurance policies must be liberally

                    construed in favor of the insured. *** All doubts and ambiguities must be

                    resolved in favor of the insured.” (Emphases omitted.) United States Fidelity &

                    Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73-74 (1991).

          See also Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 107-08

          (1992).

¶ 16         The Wilkin court held that the insurer in that case had a duty to defend because the policy

          exclusions “d[id] not preclude potential coverage under the policy.” Wilkin, 144 Ill. 2d at 81.

¶ 17         The circuit court here held that the policy exclusion for liability arising from

          Blinderman’s sole negligence established that Hastings had no duty to defend Blinderman.

          “[T]he insurer bears the burden of establishing that a claim falls within a provision of the

          policy that limits or excludes coverage.” Old Second National Bank v. Indiana Insurance


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          Co., 2015 IL App (1st) 140265, ¶ 22; see Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453-

          54 (2009). Thus, Hastings had the burden of showing that Blinderman’s liability arose out of

          the sole negligence of Blinderman or those acting on Blinderman’s behalf, and not from the

          negligent acts or omissions of Polcurr.

¶ 18         The circuit court focused on the absence of allegations about Polcurr in the complaint the

          Estate of Woods filed against Blinderman. By adopting that focus, the circuit court ignored

          the context in which the Estate filed its complaint. In Pekin Insurance Co. v. Centex Homes,

          2017 IL App (1st) 153601, the court said:

                  “[T]he allegations of the underlying complaint must be read with the

                  understanding that the employer may be the negligent actor even where the

                  complaint does not include allegations against that employer. [Citation.]

                       ***

                       *** ‘[S]ilen[ce] as to any acts or omissions’ by the named insured must be

                  understood as the possible result of tort immunity for employers under the

                  workers’ compensation laws and should not be a basis for refusing to defend an

                  additional insured.” Centex Homes, 2017 IL App (1st) 153601 ¶¶ 36-38 (quoting

                  Ramara, Inc. v. Westfield Insurance Co., 814 F.3d 660, 677 (3d Cir. 2016)).

¶ 19         The Estate of Woods in its complaint did not specifically allege that Polcurr’s acts or

          omissions caused the injury. But the Estate did not expect to recover damages from Polcurr

          and had no reason to include allegations about the acts or omissions of Polcurr. The

          complaint’s silence concerning Polcurr’s acts or omissions does not suffice to meet


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          Hastings’s burden of showing that Polcurr’s acts or omissions did not contribute to causing

          the injury.

¶ 20          Hastings cites Pekin Insurance Co. v. Roszak/ADC, LLC, 402 Ill. App. 3d 1055 (2010),

          for the proposition that “without any allegations in the complaint suggesting” that the

          subcontractor acted negligently and caused the injury, the subcontractor’s insurer had no duty

          to defend the general contractor. Roszak, 402 Ill. App. 3d at 1064; see American Country

          Insurance Co. v. Cline, 309 Ill. App. 3d 501, 512 (1999) (subcontractor’s insurer has no duty

          to defend additional insured where underlying complaint does not suggest that

          subcontractor’s negligent acts caused injury). In Roszak, the policy provided:

                 “ ‘Who is An Additional Insured *** is amended to include as an insured any

                 person or organization for whom you are performing operations when you 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 your

                 policy. Such person or organization is an additional insured only with respect to

                 liability incurred solely as a result of some act or omission of the named insured

                 and not for its own independent negligence or statutory violation.’ ” Roszak, 402

                 Ill. App. 3d at 1058.

¶ 21          The additional insured in Roszak bore the burden of proving that the limiting language

          did not apply because the limiting language appeared in the coverage grant and not in a

          separate exclusionary clause. Because the limiting language the circuit court relied on here

          appeared in a separate exclusion, we have no basis for shifting the burden of proof from the


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          insurer to the insured. The insurer must meet the burden of proving that its exclusions apply

          and preclude coverage. Addison Insurance, 232 Ill. 2d at 454.

¶ 22         We note that Blinderman’s third-party complaint against Polcurr includes allegations

          consistent with the Estate’s complaint, showing how Polcurr’s acts or omissions might have

          contributed to causing Woods’s injury. However, Blinderman would need to use those

          pleadings only if it bore the burden of proving that Polcurr’s acts or omissions might have

          contributed to causing Woods’s injury. Because the Estate’s complaints include no

          allegations about Polcurr’s acts or omissions, and Hastings has presented no evidence

          concerning Polcurr’s acts or omissions, Hastings has not met its burden of proving that

          Blinderman’s liability in the underlying case arose out of Blinderman’s “sole negligence.”

          Thus, we need not address Blinderman’s argument that the court should have considered the

          allegations of the third-party complaint Blinderman filed against Polcurr to help the court

          determine whether the injury resulted from the sole negligence of Blinderman. We also need

          not address Blinderman’s argument that Hastings knew true but unpleaded facts that showed

          Polcurr might owe Blinderman compensation for Polcurr’s role in causing the injury. We

          reverse the summary judgment entered in favor of Hastings and remand for proceedings in

          accord with this opinion.

¶ 23                                         CONCLUSION

¶ 24         In the underlying complaint that the Estate of Woods filed against Blinderman, the estate

          alleged that Woods sustained an injury while working for Polcurr but included no other

          allegations about Polcurr’s conduct. We hold that, because Polcurr’s insurer, Hastings,


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          presented no evidence concerning Polcurr’s conduct, Hastings has not met its burden of

          proving that Polcurr’s conduct did not in any way contribute to causing the injury Woods

          sustained. Therefore, we reverse the judgment entered in favor of Hastings and remand for

          further proceedings in accord with this opinion.

¶ 25         Reversed and remanded.




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