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                                     Appellate Court                        Date: 2017.12.07
                                                                            15:14:03 -06'00'




    Pekin Insurance Co. v. Johnson-Downs Construction, Inc., 2017 IL App (3d) 160601



Appellate Court       PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v.
Caption               JOHNSON-DOWNS CONSTRUCTION, INC., an Illinois
                      Corporation; CINCINNATI INSURANCE COMPANY, a Foreign
                      Insurance Corporation; and JEFF BARNETT, Defendants-Appellees.



District & No.        Third District
                      Docket No. 3-16-0601


Rule 23 order filed   May 25, 2017
Motion to
publish allowed       July 6, 2017
Opinion filed         July 6, 2017
Supplemental
opinion filed         November 6, 2017



Decision Under        Appeal from the Circuit Court of Will County, No. 16-MR-962; the
Review                Hon. John Anderson, Judge, presiding.



Judgment              Reversed and remanded with directions.
                      Costs allowed.


Counsel on            Robert Marc Chemers, Jonathan L. Federman, and Peter G. Syregelas,
Appeal                of Pretzel & Stouffer, Chtrd., of Chicago, for appellant.

                      David E. Schroeder, of Tribler Orpett & Meyer, P.C., of Chicago, for
                      appellees.
     Panel                    JUSTICE McDADE delivered the judgment of the court, with
                              opinion.
                              Justices Carter and O’Brien concurred in the judgment and opinion.
                              Justice O’Brien also dissented upon filing of a supplemental opinion,
                              with opinion.


                                                OPINION

¶1         Defendant Johnson-Downs Construction, Inc. (Johnson-Downs), entered into a
       construction contract with Art’s Landscaping, Inc. (Art’s). Jeff Barnett, an Art’s employee,
       was injured at the site and sued Johnson-Downs for construction negligence. Pekin Insurance
       Company (Pekin) filed a declaratory judgment action in Will County circuit court claiming it
       did not have a duty to defend Johnson-Downs as an additional insured under Art’s insurance
       policy. Johnson-Downs filed a motion to stay the action pending the resolution of the
       underlying case, which the trial court granted. Pekin appeals, arguing (1) the trial court’s grant
       of the motion to stay was an abuse of discretion, (2) the trial court cannot consider
       Johnson-Downs’s third amended complaint in its determination, and (3) the trial court cannot
       consider Barnett’s amended complaint in its determination. We reverse and remand with
       directions.

¶2                                                  FACTS
¶3          Defendant Johnson-Downs entered into a contract with Art’s, in which Art’s would
       perform work on the construction of an addition to the Riverside Hospital in Kankakee,
       Illinois. Section 13.4 of the contract stated that Art’s was required to name Johnson-Downs as
       an additional insured on its liability insurance policy. Art’s had an insurance policy through
       Pekin Insurance Company. The relevant portion of the policy regarding additional insured
       states:
                    “ADDITIONAL INSURED—
                OWNERS, LESSEES OR CONTRACTORS—
                WHEN REQUIRED IN CONSTRUCTION
                AGREEMENT WITH YOU
                PRIMARY AND NONCONTRIBUTORY
                This endorsement modifies insurance provided under the following:
                COMMERCIAL GENERAL LIABILITY COVERAGE PART
                1. Section II—Who Is An 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 a written contract effective during the policy period stated
                on the Declarations Page (hereinafter referred to as the ‘Policy Period’) and executed
                prior to the ‘bodily injury’ or ‘property damage’ for which coverage is sought, that you
                must add that person or organization as an additional insured on a policy of liability
                insurance (hereinafter referred to as the ‘Additional Insured’).



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               The Additional Insured is covered only with respect to vicarious liability for ‘bodily
               injury’ or ‘property damage’ imputed from You to the Additional Insured as a
               proximate result of your ongoing operations performed for that Additional Insured
               during the Policy Period.” (Emphasis added.)
¶4         In October 2011, Jeff Barnett, an Art’s employee, was injured while driving a front end
       loader at the construction site. Barnett filed a suit against Johnson-Downs alleging
       construction negligence and premises liability. At the time, Johnson-Downs was the only
       named defendant. Cincinnati Insurance Company, Johnson-Downs’s insurer, tendered the
       complaint to Pekin for a defense and indemnification. Since May 2013, Pekin has defended
       Johnson-Downs under its reservation of rights.
¶5         In March 2014, Johnson-Downs filed a third-party complaint against Art’s, alleging Art’s
       was negligent and, as a result, liable for Barnett’s injuries. In April 2016, Pekin sought a
       declaratory judgment claiming that (1) Johnson-Downs does not have any rights under the
       certificate of insurance, (2) Johnson-Downs has failed to bring a claim in which Pekin has a
       duty to defend, and (3) Pekin is entitled to recovery for defense cost. Johnson-Downs filed a
       response and motion to stay the declaratory judgment pending the resolution of the underlying
       case. In its motion to stay, Johnson-Downs alleged that count II of Pekin’s declaratory
       judgment would result in the trial court determining an issue of ultimate fact in violation of the
       Peppers doctrine. See Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187 (1976).
¶6         In July 2016, Barnett filed an amended complaint in the underlying case breaking the
       construction negligence claim into two separate counts: direct construction negligence and
       vicarious construction negligence. In Johnson-Downs’s reply to the motion to stay, it
       requested that the trial court consider Barnett’s amended complaint and Johnson-Downs’s
       third-party complaint when ruling on the motion. In September 2016, the trial court granted the
       motion to stay the declaratory judgment pending the resolution of the underlying claim.

¶7                                              ANALYSIS
¶8                                           I. Motion to Stay
¶9          Pekin argues that the trial court abused its discretion when it granted Johnson-Downs’s
       motion to stay because the declaratory judgment did not involve a determination of ultimate
       fact in the underlying case.
¶ 10        A circuit court may grant a motion to stay as part of its inherent authority to control the
       disposition of cases before it. Cullinan v. Fehrenbacher, 2012 IL App (3d) 120005, ¶ 10. The
       court should consider certain factors including the orderly administration of justice and
       judicial economy when making its determination. Id. We will not disturb a circuit court’s
       decision on a motion to stay absent an abuse of discretion. Id. An abuse of discretion occurs if
       the court “acted arbitrarily without the employment of conscientious judgment or, in view of
       all the circumstances, exceeded the bounds of reason and ignored recognized principles of law
       so that substantial prejudice resulted.” (Internal quotation marks omitted.) Id.
¶ 11        Under the Peppers doctrine, it is inappropriate for a court to make a determination on an
       issue of ultimate fact critical to the underlying case. See Peppers, 64 Ill. 2d at 197.
       Specifically, any determination of ultimate facts upon which liability or recovery might be
       found in an underlying case is precluded from review. Landmark American Insurance Co. v.
       NIP Group, Inc., 2011 IL App (1st) 101155, ¶ 59.


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¶ 12        In Peppers, our supreme court held that the trial court’s ruling that the injury was
       intentional was one of ultimate fact that could bind the parties to the underlying litigation.
       Peppers, 64 Ill. 2d at 196-97. In Canel, the First District ruled that determining whether Canel
       Associates knew or should have known that a claim would be made before the insurance policy
       took effect was an “ultimate fact[ ] upon which recovery is predicated in the underlying
       action.” TIG Insurance Co. v. Canel, 389 Ill. App. 3d 366, 374 (2009). Our court in Pittington
       held that Pittington’s argument that injury was not expected, anticipated, or intended is not one
       of ultimate fact because the “underlying tort suit is based solely on theories of negligence.”
       Metropolitan Property & Casualty Insurance Co. v. Pittington, 362 Ill. App. 3d 220, 229
       (2005). In NIP Group, the First District ruled that determining whether faxes are covered under
       the insurance policy was not an issue of ultimate fact when the nature and extent of the faxes
       were not a deciding factor in the underlying case. Landmark American Insurance Co. v. NIP
       Group, Inc., 2011 IL App (1st) 101155, ¶ 61.
¶ 13        In Johnson-Downs’s motion to stay, it requested that the trial court stay Pekin’s declaratory
       judgment action because Pekin’s count II allegation presents an issue of ultimate fact critical to
       the underlying case. Count II claims that Pekin does not owe a duty to defend Johnson-Downs
       because the insurance policy states that an additional insured is only covered for vicarious
       liability claims and the underlying complaint lacks such allegations. Without specifying its
       reasons, the trial court granted Johnson-Downs’s motion to stay. Assuming arguendo that the
       trial court’s ruling is based on the argument presented by Johnson-Downs in its motion to stay,
       the trial court can make a determination of whether the complaint contains any allegations of
       vicarious liability that Pekin has a duty to defend by comparing the complaint to the language
       in the insurance policy. This can be decided without examining the extent of Johnson-Downs’s
       supervisory control over Art’s alleged negligent acts and, ultimately, determining whether
       Johnson-Downs is in fact vicariously liable. Thus, we find that the trial court abused its
       discretion in granting the motion to stay and the declaratory judgment action can proceed to
       resolution prior to the conclusion of the underlying suit. Accordingly, we reverse and remand
       for a hearing on and resolution of the declaratory judgment action. We continue our analysis to
       determine whether the trial court can consider Johnson-Downs’s third-party complaint and
       Barnett’s amended complaint in its duty to defend determination.

¶ 14                                    II. Third-Party Complaint
¶ 15       Pekin argues that Johnson-Downs’s third-party complaint against Barnett cannot be
       considered by the trial court in its determination because the complaint was prepared by a
       putative additional insured seeking coverage under the policy in violation of case law.
¶ 16       A trial court may consider evidence beyond the underlying complaint, including a
       third-party complaint. Pekin Insurance Co. v. United Contractors Midwest, Inc., 2013 IL App
       (3d) 120803, ¶ 29 (citing Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 458-62 (2010)).
       However, there are exceptions that prohibit the review of third-party complaints. See Wilson,
       237 Ill. 2d at 459 (“a circuit court may, under certain circumstances, look beyond the
       underlying complaint in order to determine an insurer’s duty to defend” (emphasis added)). In
       DePaul University, the First District determined that a putative additional insured is not
       allowed to bolster its claim of coverage by referencing its own third-party complaint.
       American Economy Insurance Co. v. DePaul University, 383 Ill. App. 3d 172, 180 (2008). The
       First District in National Fire also determined that a putative additional insured could not

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       reference his third-party complaint as a way to bolster coverage under the insurance policy.
       National Fire Insurance of Hartford v. Walsh Construction Co., 392 Ill. App. 3d 312, 322
       (2009). Following the guidance of DePaul University and National Fire, our court in United
       Contractors declined to consider the putative additional insured’s third-party complaint where
       the additional insured filed the complaint after the declaratory action, demonstrating potential
       self-serving evidence. Pekin Insurance Co. v. United Contractors Midwest, Inc., 2013 IL App
       (3d) 120803, ¶¶ 29-32.
¶ 17       Here, Johnson-Downs, the putative additional insured and the author of the third-party
       complaint, is requesting the trial court to consider its own complaint in the trial court’s
       determination of Pekin’s duty to defend. As in DePaul University, National Fire, and United
       Contractors, Johnson-Downs cannot present its own complaint to bolster its position that a
       claim of vicarious liability is present in the underlying case. Therefore, we instruct the trial
       court not to consider Johnson-Downs’s third-party complaint in its determination of Pekin’s
       duty to defend.

¶ 18                                      III. Amended Complaint
¶ 19       Pekin argues that Barnett’s amended complaint was a transparent attempt to plead into
       coverage and, therefore, should not be considered in the trial court’s determination.
       Johnson-Downs alleges Illinois law does not prohibit a pleading that potentially triggers
       coverage when the facts support a cause of action.
¶ 20       We agree with Johnson-Downs. In Illinois, a pleading is not a transparent attempt to plead
       into coverage when the facts support a cause of action. See American Family Mutual Insurance
       Co. v. Guzik, 406 Ill. App. 3d 245, 248-49 (2010) (State Farm’s argument that Guzik
       negligently failed to prevent fire from spreading was transparent attempt to plead into coverage
       when the factual allegations show Guzik’s actions were not negligent); Pekin Insurance Co. v.
       Dial, 355 Ill. App. 3d 516, 522 (2005) (transparent attempt to plead into coverage where the
       factual allegations show a course of conduct that was clearly intentional and not merely
       negligent or accidental conduct that falls within the insurance policy); USAA Casualty
       Insurance Co. v. McInerney, 2011 IL App (2d) 100970, ¶ 26 (“the Cyrs properly alleged an
       alternative theory of recovery and there is no indication that the claim for negligent
       misrepresentation was a transparent attempt to trigger insurance coverage”).
¶ 21       In this case, the amended complaint alleges that Art’s failure to maintain equipment and
       working conditions resulted in Barnett’s injuries and that Johnson-Downs, as the general
       contractor, exercised control over Art’s such that Johnson-Downs was liable for Art’s
       negligent acts and omissions. The insurance policy covers claims of vicarious liability imputed
       to Johnson-Downs as a proximate result of Art’s acts or omissions in its performance for
       Johnson-Downs. We believe the factual allegations in the amended complaint state a vicarious
       liability claim that falls within the coverage of the insurance policy, and therefore, Barnett’s
       amended complaint was not an improper or unsupported attempt to plead into coverage.
       Moreover, the facts supporting the amended claim were present in an undifferentiated form in
       Barnett’s original complaint. Accordingly, we instruct the trial court that it may consider
       Barnett’s amended complaint in its duty to defend determination.




                                                  -5-
¶ 22                                         CONCLUSION
¶ 23       The judgment of the circuit court of Will County is reversed and remanded with directions.

¶ 24       Reversed and remanded with directions.

¶ 25                                   SUPPLEMENTAL OPINION

¶ 26                                               FACTS
¶ 27        As a preliminary matter, we adopt all facts and holdings of our decision on the merits,
       which was set forth in our previous opinion, filed July 6, 2017.
¶ 28        On July 28, 2017, plaintiff Pekin Insurance Company filed a motion to tax costs against
       defendants Johnson-Downs Construction, Inc., and Cincinnati Insurance Company pursuant to
       Illinois Supreme Court Rule 374 (eff. Feb. 1, 1994), requesting costs in the amount of
       $1587.46. Plaintiff contends that, because our court reversed the lower court’s ruling in the
       decision above, it is entitled to costs under Illinois Supreme Court Rule 374(b)(2), (3), (5) (eff.
       Feb. 1, 1994) for the following: (1) a $50 docketing fee, (2) $287.25 for the preparation of the
       record on appeal, (3) $663.21 for professional printing of its appellant brief, and (4) $587 for
       professional printing of its reply brief. Defendants filed objections to the motion.

¶ 29                                              ANALYSIS
¶ 30       An amendment to Rule 374 became effective July 1, 2017. In its motion, plaintiff cited the
       former version of the rule; however, it filed the motion after the amendment’s effective date.
       We review plaintiff’s motion under the newly amended version.
¶ 31       Rule 374 states, in relevant part:
               “(a) Except as otherwise provided by law *** if a judgment is reversed, costs shall be
               taxed against the appellee unless excused by the court for good cause shown ***.
                    (b) The following costs are taxable:
                        (1) filing fees paid to the clerk of the reviewing court;
                        (2) appearance fees in the reviewing court;
                        (3) the fee paid to the clerk of the trial court (but not to court reporter) for the
                    preparing the record on appeal; and
                        (4) the actual and reasonable cost of printing or otherwise producing duplicate
                    paper copies of documents authorized by these rules (the cost of including
                    unnecessary matters or arguments may be disallowed as costs).” Ill. S. Ct. R.
                    374(a), (b) (eff. July 1, 2017).
¶ 32       We reversed the trial court’s decision above, and plaintiff’s requested costs are taxable
       under Rule 374(b). Thus, we find plaintiff is entitled to costs taxed against defendants.
¶ 33       Defendants argue that Rule 374 is inapplicable and cite In re D.D., 337 Ill. App. 3d 998
       (2002), to support their contention that an interlocutory order, such as the subject of appeal in
       this case, is not a judgment as contemplated in the rule. Defendants further contend plaintiff is
       only entitled to costs if this court reversed a final judgment. We disagree.
¶ 34       In the instant case, plaintiff filed an appeal from an interlocutory order pursuant to Illinois
       Supreme Court Rule 307 (eff. Feb. 1, 2010). This court reversed the trial court’s order staying

                                                     -6-
       proceedings on plaintiff’s motion for declaratory judgment. Rule 374 permits costs against
       defendants if the judgment is reversed unless good cause is shown. Ill. S. Ct. R. 374(a) (eff.
       July 1, 2017). Illinois Supreme Court Rule 2(b)(2) (eff. July 1, 2017) states the term
       “ ‘[j]udgment’ also includes decree, determination, decision, order, or portion thereof.”
       Therefore, we determine an interlocutory order constitutes a judgment under Rule 374.
¶ 35        Also, defendants contend it would be unjust to order costs to plaintiff because it ultimately
       prevailed on the substance of the underlying claim. We do not believe defendants’ argument
       shows good cause to excuse the implementation of costs against them. The rule states that if a
       judgment is reversed, costs must be taxed against the appellee. Ill. S. Ct. R. 374(a) (eff. July 1,
       2017). Here, the decision was reversed, and therefore, costs must be taxed against defendants
       as the appellees. Accordingly, we hold costs in the amount of $1587.46 must be taxed against
       defendants.

¶ 36      Costs allowed.

¶ 37       JUSTICE O’BRIEN, dissenting:
¶ 38       Although I concur with the original published opinion, I write to dissent from the
       majority’s supplemental opinion granting Pekin’s motion for costs under Rule 374. Under the
       plain language of Rule 374, costs shall be taxed against the losing party unless excused by the
       court for good cause shown. Ill. S. Ct. R. 374(a) (eff. July 1, 2017). In this case, where the
       appellees were granted a stay in the lower court, which was reversed on appeal, but then the
       appellees prevailed on the underlying claim in the lower court, I believe that good cause has
       been shown such that costs should be excused under the rule.




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