                                                                           Digitally signed by
                           Illinois Official Reports                       Reporter of Decisions
                                                                           Reason: I attest to the
                                                                           accuracy and integrity
                                                                           of this document
                                   Appellate Court                         Date: 2016.09.28
                                                                           11:53:03 -05'00'




        Westfield Insurance Co. v. West Van Buren, LLC, 2016 IL App (1st) 140862



Appellate Court       WESTFIELD        INSURANCE        COMPANY,         Plaintiff  and
Caption               Counterdefendant-Appellee, v. WEST VAN BUREN, LLC, an
                      Illinois Limited Liability Company, and 933 VAN BUREN
                      CONDOMINIUM ASSOCIATION, an Illinois Not-For-Profit
                      Corporation, Defendants (West Van Buren, LLC, an Illinois Limited
                      Liability Company, Defendant and Counterplaintiff-Appellant).



District & No.        First District, Third Division
                      Docket No. 1-14-0862



Filed                 July 20, 2016



Decision Under        Appeal from the Circuit Court of Cook County, No. 12-CH-2654; the
Review                Hon. Rodolfo Garcia, Judge, presiding.



Judgment              Affirmed.


Counsel on            Ernest Summers III, Trina K. Taylor, and Kevin L. Morrow, all of
Appeal                Faegre Baker Daniels, LLP, of Chicago, for appellant.

                      David S. Osborne and Justine K. Seigler, both of Lindsay, Rappaport
                      & Postel, LLC, of Chicago, for appellee.
     Panel                      JUSTICE LAVIN delivered the judgment of the court, with opinion.*
                                Presiding Justice Mason concurred in the judgment and opinion.
                                Justice Pucinski dissented from the judgment, with opinion.

                                                  OPINION

¶1         This case involves an insurance coverage dispute. The insurance company filed a
       declaratory judgment action seeking a determination that it had no duty to defend the
       additional insured in an underlying lawsuit. The parties filed cross-motions for summary
       judgment, and the trial court ultimately ruled in favor of the insurance company. The
       additional insured now appeals contending the insurance company had a duty to defend it in
       the underlying lawsuit. We disagree and therefore affirm the trial court’s judgment in favor of
       the insurance company.

¶2                                          BACKGROUND
¶3         In 2002, West Van Buren, LLC (Developer) constructed a condominium development at
       933 W. Van Buren Street, Chicago, Illinois. The Developer subcontracted installation of the
       roof to Total Roofing and Construction Services, Inc. (Total Roofing). The subcontract
       provided that Total Roofing would insure and indemnify the Developer against liability for
       Total Roofing’s work. Total Roofing, which constructed the roof in 2002, obtained a
       commercial general liability policy through Westfield Insurance Company for
       occurrence-based coverage (between February 6, 2001, and February 15, 2005).1 The policy
       offered coverage for “occurrences,” defined as accidents, and also for “property damage.” In
       addition, the policies also provided for a duty to defend in the event of a lawsuit. Consistent
       with the subcontract, the relevant policies listed the Developer as an additional insured.
¶4         About a year after construction, the 933 Van Buren Condominium Association (Condo
       Association) took charge of the building. Shortly thereafter, the Condo Association claimed
       construction defects in the roof caused water to infiltrate into the building and individual
       condominium units and also caused damage to personal and other property in the
       condominium units. The Condo Association demanded that the Developer reconstruct the roof.
       The Developer refused, and the Condo Association then paid for the repair work that cost in
       excess of $309,000.
¶5         The Condo Association subsequently sought reimbursement for those expenses. In
       October 2010, the Developer received a mediation request for the aforementioned alleged
       repair work. The Developer, claiming it was an additional insured under the policy, notified
       Westfield Insurance and requested a defense for the mediation. Westfield Insurance declined
       to offer a defense, citing a number of reasons under the policy.

             *
            This case was reassigned to Justice Lavin in mid-March 2016.
             1
            West Van Buren concedes that the first and fourth policies are not implicated in this case. The
       second policy was in effect during Total Roofing’s construction of the roof at the development. The
       third policy was in effect during the date of loss assigned by Westfield Insurance. The parties have not
       made clear which policy applies. It is of no moment because the policies both define “property damage”
       and “occurrence” in the same manner, and those definitions are at the heart of this appeal. For the sake
       of simplicity, we refer to these two policies as the “policy” unless otherwise indicated.

                                                      -2-
¶6       The mediation fell through, and on August 8, 2011, the Condo Association sued the
     Developer and Total Roofing, 2 among others, in a multi-count complaint 3 for breach of
     warranty, violating the Consumer Fraud and Deceptive Business Practices Act (815 ILCS
     505/1 et seq. (West 2010)), fraud, and breach of the implied warranty of habitability. The
     complaint asserted that water infiltrated the common elements and individual units. It noted
     that each condominium purchase agreement provided by the Developer warranted against any
     defects in material and workmanship in the common elements of the building. Yet, when these
     units were sold, they allegedly “contained a number of hidden and latent defects that West Van
     Buren [the Developer] intentionally failed to disclose, including but not limited to: a) defects in
     the roofing system and the individual roofing components so as to allow water infiltration into
     the Condo Building *** and b) West Van Buren’s failure to construct the Condo Building in
     substantial conformity with the plans and specifications.” (Emphasis added.) The complaint
     also asserted the Developer fraudulently covered up hidden and latent defects, also alleging:
     “Moreover, individual unit owners experienced damage to personal and other property as a
     result of the water infiltration.” The complaint asserted that the defendants were responsible
     for $300,000 in damages and that had the unit owners been aware of the concealed defects,
     they would not have purchased their units or at least would have negotiated a better purchase
     price.
¶7       Within days of this lawsuit, the Developer notified Westfield Insurance and tendered the
     defense, but Westfield declined to undertake it. Westfield Insurance nonetheless agreed to
     defend Total Roofing under a reservation of rights. Westfield Insurance subsequently filed the
     present declaratory action for a determination that it owed no duty to defend or indemnify the
     Developer as the additional insured in the underlying case.4 The Developer, in turn, filed a
     counterclaim alleging a duty to defend because the underlying complaint contained allegations
     of personal property damage that were within the policy’s coverage and based on estoppel.
     Westfield Insurance denied that the underlying complaint alleged a covered occurrence.
¶8       The parties filed cross-motions for summary judgment in the declaratory judgment action.5
     At the hearing on the motions, Westfield Insurance acknowledged the underlying complaint
     alleged personal property damage but argued that the Condo Association lacked standing to
     assert such claims on behalf of individual unit owners.

         2
            The initial complaint named “Total Roofing Control” as a defendant. In an amended complaint the
     Condo Association corrected the named party as “Total Roofing & Construction Services, Inc.” For the
     sake of simplicity, we refer to the initial complaint, as the two are identical. See Cincinnati Cos. v. West
     American Insurance Co., 183 Ill. 2d 317, 329 (1998) (generally, an insurer’s duty to defend is triggered
     by actual notice of the underlying suit). Moreover, both parties on appeal rely on the initial complaint in
     determining whether a duty to defend arose. We note that the Condo Association also filed a
     second-amended complaint on October 11, 2012, adding a negligence count against only a roof
     consulting firm.
          3
            The complaint actually included five counts. Count III, however, was for breach of fiduciary duty
     only against three members of the Developer’s board.
          4
            Westfield Insurance filed the present declaratory action against the Developer on January 25,
     2012. More than a year later, on September 10, 2013, Westfield Insurance also filed a declaratory
     judgment action against Total Roofing claiming it owed no duty to defend or indemnify its insured.
          5
            The Condo Association filed a response that adopted the Developer’s arguments and requested
     that the court grant the Developer’s summary judgment motion.

                                                      -3-
¶9        The circuit court initially granted summary judgment for this declaratory action to the
       Developer, but upon a motion to reconsider by Westfield Insurance, the court subsequently
       vacated its judgment and granted summary judgment to Westfield Insurance. The court
       concluded that since there was no duty to defend, then there was no duty to indemnify. The
       Developer filed this timely appeal.

¶ 10                                              ANALYSIS
¶ 11        Summary judgment is properly granted when the pleadings, depositions, and admissions
       on file, together with the affidavits, if any, show that there is no genuine issue of material fact
       and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West
       2014). Where parties file cross-motions for summary judgment, they agree the case presents
       only questions of law, and they invite the trial court to decide these legal questions on the basis
       of the record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. Our standard of review is de novo, and we
       may affirm on any basis in the record regardless of whether the trial court relied on that basis or
       its reasoning was correct. Id. ¶ 30; Chicago Title Insurance Co. v. Bass, 2015 IL App (1st)
       140948, ¶ 13. The construction of an insurance policy, which presents a question of law, is
       likewise subject to de novo review. Valley Forge Insurance Co. v. Swiderski Electronics, Inc.,
       223 Ill. 2d 352, 360 (2006).
¶ 12        The Developer argues in the main that Westfield Insurance had a duty to defend the
       Developer in the underlying action6 and the trial court therefore erred in granting summary
       judgment in favor of Westfield Insurance. An insurance company’s obligation to represent its
       insured depends on the allegations of the underlying complaint and the provisions of the
       insurance policy. Diamond State Insurance Co. v. Chester-Jensen Co., 243 Ill. App. 3d 471,
       476 (1993). The complaint must be liberally construed and all doubts resolved in favor of
       coverage for the insured. Id. A duty to defend will arise when the allegations of the underlying
       complaint may potentially come within the coverage of the policy. Id. at 476-77.
¶ 13        Thus, in order to address this matter, we turn to both the underlying complaint and the
       language of the insurance policy itself. The general rules governing the interpretation of
       contracts also govern the interpretation of insurance policies. Standard Mutual Insurance Co.
       v. Lay, 2013 IL 114617, ¶ 24. As such, a court’s primary objective in analyzing an insurance
       policy is to ascertain and give effect to the parties’ intentions as expressed by the policy
       language, which we construe in its plain and ordinary meaning. Swiderski Electronics, Inc.,
       223 Ill. 2d at 362-63. We view the policy as a whole so as to give effect to every provision if
       possible. Id. at 362. As a result, if the policy language is unambiguous, generally the policy
       will be applied as written. Lay, 2013 IL 114617, ¶ 24.


           6
             Westfield Insurance notes in its statement of facts that the underlying lawsuit was dismissed on
       October 20, 2014. We have reviewed the Cook County circuit court clerk’s records, of which we may
       take judicial notice (see In re Application of the County Treasurer & ex officio County Collector, 356
       Ill. App. 3d 1102, 1111 (2005)), but they do not make clear what happened between the multiple parties
       in the underlying lawsuit. Nonetheless, our records show there is currently a case pending in the
       appellate court between the Developer (the appellant and cross-appellee) and Total Roofing (the
       appellee and cross-appellant) arising from cross-claims filed in the underlying litigation. According to
       their briefs, the underlying lawsuit by the Condo Association is currently no longer being actively
       litigated. The Condo Association claims were dismissed, some with prejudice and some without.

                                                      -4-
¶ 14       At the outset, we observe that throughout its brief, the Developer cites a copy of the
       underlying complaint attached to the appendix. Illinois Supreme Court Rules 341(h)(6) and
       (7), however, require that an appellant cite the record. See Ill. S. Ct. R. 341(h)(6), (7) (eff. Jan.
       1, 2016). The Illinois Supreme Court Rules are not suggestions; they have the force of law and
       must be complied with. Estate of Prather v. Sherman Hospital Systems, 2015 IL App (2d)
       140723, ¶ 32. Where a brief has failed to comply with the rules, we may strike portions of the
       brief or dismiss the appeal should the circumstances warrant. Id. Given the force that the
       underlying complaint carries in this case, it would behoove the Developer to accurately cite it
       in the record on appeal. Nonetheless, we conclude the location of the complaint is easily
       ascertainable and thus we proceed in our review.
¶ 15       We also must note that it is questionable whether the appellant was even an additional
       insured under the policy. The policy stated, “To the extent of the Named Insured’s ongoing
       operations, the coverage afforded to the Additional Insured which may be imputed to the
       Additional Insured.” This sentence is unclear. We find the only reasonable construction is that
       the policy provided that the additional insured would be covered “to the extent of the Named
       Insured’s ongoing operations.” Here, according to the underlying complaint, the Condo
       Association discovered the water infiltration and leaking in 2003, which was about one year
       after the roofing was installed. The fact that the roof was seemingly complete at the time of the
       discovered leak would mean the subcontractor’s “operations” had ended and so too had the
       Developer’s status as an additional insured. This has been perhaps left unexplored because
       discovery was stayed during the declaratory action. We proceed in our review because even
       assuming the Developer was an additional insured, we conclude the complaint and policy
       unequivocally authorize the trial court’s result.
¶ 16       Here, the policy at issue defined “occurrence” as “an accident, including continuous or
       repeated exposure to substantially the same general harmful conditions.” The policy also
       defined “property damage” as “a. Physical injury to tangible property, including all resulting
       loss of use of that property. All such loss of use shall be deemed to occur at the time of the
       physical injury that caused it; or b. Loss of use of tangible property that is not physically
       injured. All such loss of use shall be deemed to occur at the time of the ‘occurrence’ that
       caused it.”
¶ 17       As stated, the complaint alleges the Developer breached contractual warranties and also
       committed fraud in selling the condo units because it intentionally concealed hidden defects in
       the roofing system and the individual roofing components “so as to allow water infiltration into
       the Condo Building.” See Stoneridge Development Co. v. Essex Insurance Co., 382 Ill. App.
       3d 731, 747 (2008) (implied warranty of habitability is contractual in character). In other
       words, according to the complaint, the Developer failed to properly install the roof system and
       failed to correct the defect. The allegation of intentional conduct was incorporated in all counts
       of the complaint, and general negligence of the Developer was not alleged.
¶ 18       Analyzing the complaint in light of the policy, we conclude Westfield Insurance had no
       duty to defend the Developer in the Condo Association’s underlying action for the following
       three reasons. First, the policy essentially requires an accidental event to trigger coverage, yet
       there is nothing accidental alleged in the complaint. The complaint either focuses on the
       intentional bad acts of the Developer or nonfortuitous events, like the resulting damage to the
       condo building due to shoddy workmanship, of which the Developer was allegedly aware. See
       Viking Construction Management, Inc. v. Liberty Mutual Insurance Co., 358 Ill. App. 3d 34,

                                                     -5-
       42, 54 (2005) (there is no occurrence when a subcontractor’s defective workmanship
       necessitates removing and repairing work and where the damages claimed are the natural and
       ordinary consequences of defective workmanship); see also Stoneridge Development Co., 382
       Ill. App. 3d at 752 (same); Crawford Laboratories, Inc. v. St. Paul Insurance Co. of Illinois,
       306 Ill. App. 3d 538, 544 (1999) (an accident by its very nature contemplates an event that is
       unforeseen and neither intended nor expected). Although the dissent states the failure to do
       something (like properly construct a roof) can constitute an accident, this is not supported by
       the bulk of case law. See Viking Construction Management, Inc. v. Liberty Mutual Insurance
       Co., 358 Ill. App. 3d 34, 42, 54 (2005) (there is no occurrence when a subcontractor’s defective
       workmanship necessitates removing and repairing work and where the damages claimed are
       the natural and ordinary consequences of defective workmanship); see also Stoneridge
       Development Co., 382 Ill. App. 3d at 752 (same); Crawford Laboratories, Inc. v. St. Paul
       Insurance Co. of Illinois, 306 Ill. App. 3d 538, 544 (1999) (an accident by its very nature
       contemplates an event that is unforeseen and neither intended nor expected); but see
       Milwaukee Mutual Insurance Co. v. Larsen, 2011 IL App (1st) 101316, ¶ 28 (faulty window
       system that allegedly damaged personal property deemed possible occurrence, in part due to
       negligence). Any alleged damage to the common or personal property was not an accident and
       therefore not the result of any occurrence. Thus, those allegations in the underlying complaint
       do not potentially fall within the policy coverage. See State Farm Fire & Casualty Co. v.
       Tillerson, 334 Ill. App. 3d 404, 409 (2002).
¶ 19        Second, the allegations of the complaint likewise do not fall within the definition of
       property damage under the policy’s plain language. In the seminal case, Travelers Insurance
       Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 308 (2001), our Illinois Supreme Court held
       that “physical” injury occurs when property is altered in appearance, shape, color, or in other
       material dimension and does not take place when an economic injury occurs, such as the
       diminution in value. Yet, the allegations in the Condo Association’s underlying complaint
       sought only to hold the Developer responsible for the shoddy workmanship of its roofing
       subcontractor. The complaint sought damages of some $300,000 for repair and remediation of
       the roof and also alleged that had the unit owners known of the defects, they either would not
       have purchased the condo units or would have negotiated the price. As such, these damages
       and the allegations related only to diminished value and economic harm. However, as the court
       in Eljer observed, where the language of an insurance policy explicitly requires physical
       injury, it cannot be construed to provide coverage on the basis of loss or diminished use simply
       resulting from the failure of a component to perform as promised. Id. at 311. Defective work
       and products are purely economic losses. Id. at 314; see also CMK Development Corp. v. West
       Bend Mutual Insurance Co., 395 Ill. App. 3d 830, 841 (2009) (no coverage for homeowners
       pursuing a breach of contract claim for loss due to repair or replacement of defective work or
       diminished home value); Viking Construction Management, Inc., 358 Ill. App. 3d at 54-56 (no
       property damage where allegations in underlying complaint point to repair and replacement of
       defective product or construction). Otherwise, the policy would function as a performance
       bond. Eljer Manufacturing, Inc., 197 Ill. 2d at 311.
¶ 20        Third, in reaching the above-stated conclusions, we must reject the Developer’s argument
       that the underlying complaint triggered a duty to defend because the complaint alleged actual
       physical harm to personal property. While construction defects that damage something other
       than the project itself can constitute an occurrence and property damage (see Stoneridge


                                                  -6-
       Development Co., 382 Ill. App. 3d at 752-53), they do not in this case. We agree with the trial
       court that these allegations were meant to simply bolster the contention that water infiltration
       generally occurred and caused damages. They do not trigger potential coverage under the
       policy. The individual condo unit owners themselves were not parties to the complaint, and the
       Condo Association did not purport to act on behalf of any individual condo unit owners. See
       765 ILCS 605/9.1(b) (West 2002) (condo board can act in representative capacity as to matters
       involving “the common elements or more than one unit”). Contrary to the dissent’s assertion,
       the complaint did not seek damages for any personal property damage. In addition, we note
       that while we confine our analysis to the allegations in the initial complaint, we find it
       instructive that even the second-amended complaint (and third complaint filed) did not add as
       parties the individual condo unit owners or identify these owners and their specific claims for
       damages. As Westfield Insurance notes, “factual allegations certainly are important to a
       coverage determination, but only if those allegations are directed to a theory of recovery.”
       ISMIE Mutual Insurance Co. v. Michaelis Jackson & Associates, LLC, 397 Ill. App. 3d 964,
       971 (2009). Moreover, we cannot read into the complaint something that is not there, but rather
       we are confined to what was actually alleged. See Pekin Insurance Co. v. Roszak/ADC, LLC,
       402 Ill. App. 3d 1055, 1063 (2010). We do not believe a free-standing reference to a fact, that
       is not attached to any particular theory of recovery or particular party in the complaint, can
       trigger a duty to defend. See Acuity v. Lenny Szarek, Inc., 128 F. Supp. 3d 1053, 1059-62 (N.D.
       Ill. 2015) (analogous facts and finding same); cf. Larsen, 2011 IL App (1st) 101316, ¶¶ 20-21
       (duty to defend in defective construction even though complaint did not expressly describe
       damages to personal property).
¶ 21        This case is similar to Diamond State. There, the State’s underlying complaint against
       Chester-Jensen (a refrigeration and heating manufacturer) sought damages for
       Chester-Jensen’s role in a failed air-conditioning system installed in the Thompson Center
       building. The State’s complaint alleged breaches of contract and warranty, claiming economic
       damages and that the defective system injured the employees who became ill or otherwise lost
       time from work because of the excessive heat in the building. In affirming that there was no
       duty to defend and in analyzing the aforementioned allegations under the policy provision on
       bodily injury, the appellate court stated:
                   “[Chester-Jensen’s] proposed interpretation would distort the meaning of this
               provision and extend its reach so as to provide coverage for any liability where bodily
               injury is a tangential factor. It is manifest that the core of the State’s claim for damages
               against Chester-Jensen is a claim for its economic losses. The fact that the State’s claim
               for its economic losses as a result of diminished productivity may have been
               occasioned in part by the illness of its employees does not transmute its economic
               claim for which it seeks recovery from Chester-Jensen into one for ‘bodily injury.’ ”
               Diamond State, 243 Ill. App. 3d at 477-78.
       This court noted the State did not bring the action on behalf of the employees or seek recovery
       for them on account of their illness or bodily injury and held there was no property damage
       either. See also Bituminous Casualty Corp. v. Gust K. Newberg Construction Co., 218 Ill. App.
       3d 956, 964 (1991) (finding same and that allegations regarding injured employees not offered
       for recovery but as evidence of failed air system).
¶ 22        Likewise, in this case the Condo Association’s allegations of personal property damage
       were not offered for the purposes of recovery. These allegations were purely tangential to the

                                                    -7-
       Condo Association’s claim for damages for repair and remediation of the roof. Further, even if
       the Condo Association sought to recover amounts attributed to property damage sustained by
       individual unit owners,7 such amounts, vis-a-vis the Condo Association, are economic losses
       and not property damage. As a result, the trial court properly disregarded these allegations in
       determining Westfield Insurance’s duty to defend. See also id. For the reasons stated, the
       underlying complaint, even liberally construed in the Developer’s favor, does not offer
       allegations toward a theory of recovery that fits within the potential coverage of the policy. In
       affirming that there was no potential coverage, we find no need to examine the exclusions in
       this case. See id. at 966.
¶ 23        In an effort to save itself, the Developer appears to argue that Westfield Insurance should
       have raised the issue of “standing” as an affirmative defense in the underlying lawsuit by the
       Condo Association. Had there been a duty to defend, the Developer’s argument might make
       sense. See Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855 (2007) (a reviewing
       court is entitled to have the issues on appeal clearly defined and cohesive legal argument
       presented). As there was no duty to defend, we must disregard this circular argument.
       Moreover, the analysis above makes clear that the issue does not necessarily involve standing
       but the more nuanced consideration of whether the underlying complaint sufficiently raised a
       theory of recovery together with supporting facts that trigger potential coverage under the
       insurance policy. While the Condo Association might have had the capacity to represent the
       individual unit owners, nowhere in the complaint did it purport to do so.
¶ 24        Therefore, we must also reject the Developer’s related argument that our determination
       about “standing” has a preclusive effect as to the underlying lawsuit. The Developer cites legal
       principles from Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187 (1976), which was also a
       duty to defend case in which an underlying lawsuit alleged alternative counts of intentional and
       negligent conduct. The court for the declaratory action in Peppers had concluded the injury at
       issue was intentionally inflicted, but the supreme court determined this finding on an “ultimate
       fact” was premature and might preclude recovery under other theories in the underlying
       lawsuit. Id. at 197. The Developer appears to draw an analogy here as to “standing.” We repeat
       that the issue in this case is more nuanced than the Developer acknowledges, and determining
       whether a complaint triggers a duty to defend with its allegations is far different from drawing
       a conclusion on an issue of fact. This argument is also questionable given that the underlying
       complaint is no longer being actively litigated. Regardless, “standing” is not a factual issue but
       a legal one, and thus the Peppers principle cited by the Developer is demonstrably
       inapplicable.
¶ 25        Based on the foregoing, we also conclude the trial court did not err in granting Westfield
       Insurance’s motion to reconsider the trial court’s initial judgment in favor of the Developer.
       The Developer argues the trial court granted the motion to reconsider on a basis not raised in
       the motion. We disagree. The motion to reconsider raised a number of issues but significantly
       incorporated Westfield Insurance’s legal memorandum supporting summary judgment. The
       initial trial court judgment in favor of the Developer clearly was the product of a
       misapplication of the law, and the trial court also expressed on the record that it did not fully
       analyze the present case when it granted the initial summary judgment, thus warranting

           7
            Tellingly, counsel for the Condo Association refused to answer the trial court’s question on this
       point.

                                                     -8-
       correction. Stevens v. Village of Oak Brook, 2013 IL App (2d) 120456, ¶ 37 (a court has the
       inherent authority to reconsider and correct its rulings, and this power extends to interlocutory
       rulings as well as to final judgments); Pence v. Northeast Illinois Regional Commuter R.R.
       Corp., 398 Ill. App. 3d 13, 16 (2010) (noting standards for motions to reconsider and further
       that a trial court may deny a motion for summary judgment and later change its position and
       grant the same motion).
¶ 26       Having determined there was no duty to defend the Developer in the underlying action, we
       also affirm the trial court’s determination that there was no duty to indemnify. See Gust K.
       Newberg Construction Co., 218 Ill. App. 3d at 966. We disregard the Developer’s request to
       stay the indemnity issue. The Developer offered no legal citation to support its request, thus
       waiving it. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (points not argued are waived).
       Furthermore, although a court should refrain from adjudicating issues of fact in an insurance
       declaratory action that will have a preclusive effect in the underlying case (see United States
       Fidelity & Guaranty Insurance Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 537 (1994) (citing
       Murphy v. Urso, 88 Ill. 2d 444, 455 (1981))), nothing in the trial court’s determination that the
       Condo Association’s complaint did not allege “property damage” within the meaning of the
       policy foreclosed the litigation of any issue of fact relevant to the Developer’s liability for
       faulty workmanship. And, in any event, because the Condo Association’s claims are no longer
       pending, the request is moot.

¶ 27                                  CONCLUSION
¶ 28     We affirm the judgment of the circuit court granting summary judgment in favor of
       Westfield Insurance.

¶ 29      Affirmed.

¶ 30       JUSTICE PUCINSKI, dissenting.
¶ 31       Regretfully, I cannot join in the majority’s decision, as the majority’s rationale and holding
       are against several well-established principles and rules of law in the area of insurance defense.
¶ 32       First, the majority analyzes the underlying complaint and the policies to determine whether
       there is in fact coverage, which is appropriate only at a later stage when determining
       indemnity. In reviewing the threshold matter whether there is a duty to defend, we examine the
       underlying complaint and the insurance policies to determine whether there is the possibility of
       recovery under the policies, not whether in fact there is indeed coverage. As has been long
       established, the duty to defend is much broader than the duty to indemnify. Outboard Marine
       Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125 (1992). The duty-to-defend
       threshold is “minimal”; the complaint need present only “a possibility,” not probability, of
       recovery under the policy. Bituminous Casualty Corp. v. Gust K. Newberg Construction Co.,
       218 Ill. App. 3d 956, 960 (1991). “The duty to defend is much broader than the duty to
       indemnify because the duty to defend is triggered if the complaint potentially falls within a
       policy’s coverage, whereas the duty to indemnify is triggered only when the resulting loss or
       damage actually comes within a policy’s coverage.” (Emphases omitted.) Country Mutual
       Insurance Co. v. Bible Pork, Inc., 2015 IL App (5th) 140211, ¶ 16 (citing Stoneridge
       Development Co. v. Essex Insurance Co., 382 Ill. App. 3d 731, 741 (2008)).


                                                   -9-
¶ 33       The majority closely parses the underlying complaint and construes the insurance policy
       not only narrowly but also against the insured to conclude there is no duty to defend. The
       correct analysis actually is to do the opposite.
¶ 34       According to the majority, “the policy essentially requires an accidental event to trigger
       coverage, yet there is nothing accidental alleged in the complaint,” thus ostensibly arguing that
       the allegations of the underlying complaint are not potentially within coverage for an
       “occurrence.” Supra ¶ 18. The majority reasons that “[a]ny alleged damage to the common or
       personal property was not an accident and therefore not the result of any occurrence.”
       Actually, the policies define “occurrence” as “an accident, including continuous or repeated
       exposure to substantially the same general harmful conditions.” The second amended
       complaint in the underlying Association lawsuit alleges that there were construction defects in
       the roofing of the development, which over time resulted in water infiltrating into the building,
       individual condominium units, “and other property,” including damage to “personal and other
       property” within the condominium units. The Association’s second amended complaint also
       alleges that the water infiltration was caused by “the failure to complete the roofing system
       under the patio concrete pavers and the failure to coat the top layer of fiberglass with hot
       asphalt.” As a result of that failure, “any water that accumulated over the roof membrane for a
       long period of time caused water to bleed through the existing roof membrane.” I do not read
       the word “accident” in the policy definition of an occurrence as to exclude failures to perform
       certain acts. Further, the policy definition of an occurrence explicitly includes “continuous or
       repeated exposure to substantially the same general harmful conditions,” which is what is
       alleged.
¶ 35       The majority also concludes that the allegations of the Association lawsuit “do not fall
       within the definition of property damage under the policy’s plain language,” and instead
       “sought only to hold the Developer responsible for the shoddy workmanship of its roofing
       subcontractor.” Supra ¶ 19. The majority further finds that the Association lawsuit alleged
       only economic damages for the repair of the roof and not property damage. But the
       Association’s second amended complaint does allege property damage under the policies. The
       policy defines “property damage” as “[p]hysical injury to tangible property, including all
       resulting loss of use of that property. All such loss of use shall be deemed to occur at the time
       of the physical injury that caused it.” The second amended complaint in the underlying
       Association lawsuit alleges that the construction defects in the roofing resulted in water
       infiltrating into the building into individual condominium units, “and other property,”
       including damage to “personal and other property” within the condominium units. The
       complaint thus alleged “[p]hysical injury to tangible property” that is within primary coverage
       of Westfield’s policies. I note that at the hearing on the motions below, Westfield
       acknowledged that the Association complaint alleged damage to personal property. Westfield
       chose to argue instead that the Association did not have standing to assert these claims for
       damage to the personal property of the condominium unit owners.
¶ 36       The majority finds that the allegations in the Association lawsuit “were meant to simply
       bolster the contention that water infiltration generally occurred and caused damages,”
       meanwhile conceding that allegations of construction defects that damage something other
       than the project itself can constitute an occurrence and property damage. The majority
       minimizes the allegations of property damage to the personal and other property of the unit
       owners as “purely tangential” to the Association’s claim for damages for repair and


                                                  - 10 -
       remediation of the roof. The majority’s only citation to support this “purely tangential”
       analysis of the allegations in the underlying complaint is to Diamond State, but Diamond State
       did not cite any authority for this lone statement. See Diamond State, 243 Ill. App. 3d at 477
       (“Appellant’s proposed interpretation would distort the meaning of this provision and extend
       its reach so as to provide coverage for any liability where bodily injury is a tangential factor.”).
       I can find no other reported Illinois case that has used such an analysis. Also, Diamond State is
       not even on point because it involved purely economic losses as a result of the diminished
       productivity of the insured’s workers under a claim for bodily injury. In this case we are
       presented with a claim for property damage, not bodily injury, and we are presented with
       allegations seeking damages for property damage, not purely economic loss. The fact that
       monetary damages are sought to also repair the roof does not transform this case into an
       economic loss case. The damages alleged are property damages, which include alleged
       property damage to the personal and other property of the individual condominium unit
       owners.
¶ 37        An insurer’s duty to defend does not hinge on the draftsmanship in the underlying
       complaint of the relative amount of damages sought for particular injuries, and clearly alleged
       allegations of property damages are not disregarded as “purely tangential” to other allegations.
       “ ‘The question of coverage should not hinge on the draftsmanship skills or whims of the
       plaintiff in the underlying action.’ ” Illinois Emcasco Insurance Co. v. Northwestern National
       Casualty Co., 337 Ill. App. 3d 356, 361 (2003) (quoting International Insurance Co. v.
       Rollprint Packaging Products, Inc., 312 Ill. App. 3d 998, 1007 (2000)). “[T]he duty to defend
       does not require that the complaint allege or use language affirmatively bringing the claims
       within the scope of the policy.” Rollprint Packaging Products, Inc., 312 Ill. App. 3d at 1007.
       “ ‘The insurer’s duty to defend does not depend upon a sufficient suggestion of liability raised
       in the complaint; instead, the insurer has the duty to defend unless the allegations of the
       underlying complaint demonstrate that the plaintiff in the underlying suit will not be able to
       prove the insured liable, under any theory supported by the complaint, without also proving
       facts that show the loss falls outside the coverage of the insurance policy.’ ” American
       Economy Insurance Co. v. Holabird & Root, 382 Ill. App. 3d 1017, 1022 (2008) (quoting
       Illinois Emcasco Insurance Co., 337 Ill. App. 3d at 361). See also Farmers Automobile
       Insurance Ass’n v. Danner, 2012 IL App (4th) 110461.
¶ 38        Further, “ ‘[a]s the threshold for pleading a duty to defend is low, any doubt with regard to
       such duty is to be resolved in favor of the insured.’ ” Holabird & Root, 382 Ill. App. 3d at 1023
       (quoting United Services Automobile Ass’n v. Dare, 357 Ill. App. 3d 955, 963 (2005)). Under
       Illinois law, even one potentially viable theory of recovery is enough to trigger the duty to
       defend. See Pekin Insurance Co. v. XData Solutions, Inc., 2011 IL App (1st) 102769, ¶ 7 (there
       is a duty to defend even if only one of several alleged theories of recovery falls within potential
       coverage).
¶ 39        I also disagree with the majority’s analysis of the standing issue. The majority dismisses
       the Developer’s argument regarding standing as “circular” and contends that the real issue is
       the “more nuanced consideration of whether the underlying complaint sufficiently raised a
       theory of recovery.” Supra ¶ 23. But the majority makes the same argument as Westfield, that
       the individual unit owners were not parties to the Association lawsuit and that the Association
       did not purport to act on behalf of the individual unit owners. Whether an individual or entity is
       a proper party to assert rights is indeed an issue regarding standing, and the Association did not


                                                    - 11 -
       have to plead or prove its own standing. See Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d
       217, 252 (2010) (“[L]ack of standing is an affirmative defense, which is the defendant’s
       burden to plead and prove.”). Section 9.1(b) of the Illinois Condominium Property Act
       explicitly provides that the board of managers of a condominium association “shall have
       standing and capacity to act in a representative capacity in relation to matters involving the
       common elements or more than one unit, on behalf of the unit owners, as their interests may
       appear.” 765 ILCS 605/9.1(b) (West 2002). This issue is thus a red herring. While the majority
       uses the issue of proper parties and standing as a coverage issue, as Westfield does, it is in fact
       an affirmative defense to be raised in the underlying litigation and not either an exclusion in the
       policy or a basis to decline a tender of defense.
¶ 40       In Milwaukee Mutual Insurance Co. v. J.P. Larsen, Inc., 2011 IL App (1st) 101316, this
       court held that the insurer had a duty to defend a construction defect claim based upon
       allegations of damage to the personal property of condominium unit owners. Unlike the cases
       cited by the majority, Milwaukee Mutual is on all fours with this case and should govern the
       outcome here.
¶ 41       There is no ground for an insurer to reject a tender of defense where there is potential
       liability on the basis of an affirmative defense available to its insured. The only appropriate
       action for an insurer in such a circumstance is to defend its insured and then raise that
       affirmative defense on behalf of its insured. See Illinois Emcasco Insurance Co., 2013 IL App
       (1st) 120735, ¶ 22. In Illinois Emcasco Insurance Co., this court rejected an attempt by the
       insurer to limit its insured’s right to a defense based on a defense in the underlying action. The
       plaintiff insurer argued in a declaratory judgment action that the court should rule it had no
       duty to defend its insured by arguing that the general contractor may not have retained
       sufficient control so as to be vicariously liable for the subcontractor’s negligence. This court
       held, however, that “at this juncture, the question is not whether Waukegan is vicariously
       liable. Rather, the issue is whether Emcasco has a duty to defend Waukegan because it could
       potentially be found vicariously liable for Walls’ injuries.” (Emphasis in original.) Illinois
       Emcasco Insurance Co., 2013 IL App (1st) 120735, ¶ 22. I agree with the Developer that if
       there is a potentially meritorious defense to the Association lawsuit, such as standing,
       Westfield should have defended the claim and raised the defense.
¶ 42       Finally, I find it instructive that Westfield chose to defend Total Roofing in the Association
       lawsuit, as Westfield must have determined that the complaint triggered its duty to defend
       Total Roofing. The circuit court below initially also found this fact instructive in its first ruling
       in favor of the Developer, before it granted Westfield’s motion to reconsider and entered
       judgment in favor of Westfield. Why Westfield accepted Total Roofing’s tender of defense but
       rejected the Developer’s tender of defense is inexplicable, as the same allegations are involved,
       in the same complaint, under the same policies, and the Developer was an additional insured
       under the same policies. While the majority questions whether the Developer was an additional
       insured after the operations were completed, the policy contained an additional insured
       endorsement that did not terminate the Developer’s additional insured status upon completed
       operations. I believe the circuit court had it right the first time. I would reverse.




                                                    - 12 -
