                                                                                SIXTH DIVISION
                                                                                   JUNE 25, 2010


No. 1-09-1709

PEKIN INSURANCE COMPANY,                        )     Appeal from the
                                                )     Circuit Court of
            Plaintiff-Appellant,                )     Cook County
                                                )
      v.                                        )     No. 08 CH 30823
                                                )
ROSZAK/ADC, LLC; ROCKFORD                       )
ORNAMENTAL IRON, INC; and                       )
DEIRDRE HASTINGS,                               )     Honorable
                                                )     Mary Anne Mason,
            Defendants-Appellees.               )     Judge Presiding.

      JUSTICE ROBERT E. GORDON delivered the opinion of the court:

      Plaintiff Pekin Insurance Co. (Pekin) filed this declaratory judgment action and appeals the

trial court’s denial of its motion for summary judgment and granting of Roszak/ADC, LLC’s

(Roszak) cross-motion for summary judgment, finding that Pekin owes Roszak a duty to defend.

735 ILCS 5/2-1005 (West 2008). In the underlying action, Deirdre Hastings had filed suit against

Roszak, among others, alleging negligence and premises liability theories for personal injuries

that she sustained while working on a construction site when Roszak was the general contractor

(the Hastings action). Roszak tendered its defense of the Hastings action to Pekin under its

coverage as an additional insured on Rockford Ornamental Iron, Inc.’s (Rockford) commercial

general liability policy. Pekin declined to defend Roszak and filed an action seeking a

declaratory judgment that it was under no duty to defend Roszak. On appeal, Pekin argues that

the terms of the additional insured endorsement on Rockford’s policy exclude Roszak from

coverage. For the following reasons, we reverse.
No. 1-09-1709

                                          BACKGROUND

      On August 10, 2007, Deirdre Hastings filed a personal injury action against Roszak and

Rockford, among others. In it, she alleges that she was an employed by Area Erectors, Inc. (Area

Erectors), as an ironworker on a construction project located on Oak Avenue in Evanston,

Illinois, when a load of structural steel escaped its rigging and struck her, causing serious

personal injuries. Roszak served as the general contractor for the project. The Hastings

complaint does not state the relationship between Roszak and Rockford. Specifically, it does not

state that Rockford was a subcontractor. However, because the parties refer to Rockford as

Roszak’s subcontractor in their briefs and at oral argument, we will assume that Roszak hired

Rockford as a subcontractor and that Rockford, in turn, hired Area Erectors as its subcontractor.

      The amended complaint in the Hastings action consists of two counts each against five

defendants. Count I, titled “Negligence,” against Roszak alleged that Roszak

                “individually and through its agents, servants and employees, was

                present during the course of such erection and construction.

                [Roszak] participated in coordinating the work being done and

                designated various work methods, maintained and checked work

                progress and participated in the scheduling of the work and

                inspection of the work. In addition thereto, at that time and place,

                the defendant had the authority to stop the work, refuse the work

                and materials and order changes in the work, in the event that the

                work was being performed in a dangerous manner or for any other

                reason.”

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No. 1-09-1709

Count I also alleged that Roszak was negligent in the following ways:

                 “(a) Failed to reasonably inspect, supervise and control the work

           site and the work being done thereon, when the defendant knew or in the

           exercise of ordinary care should have known, that adequate and proper

           inspection and control was necessary to prevent injury to the plaintiff;

                 (b)     Carelessly and negligently designated an unsafe and improper

           area for the staging and shaking out of structural steel;

                 (c)     Failed to enforce proper steel rigging, hoisting and offloading

           procedures;

                 (d)     Failed to properly supervise steel rigging, hoisting and

           offloading procedures;

                 (e)     Carelessly and negligently permitted steel rigging, hoisting

           and offloading procedures on site despite high winds;

                 (f)     Failed to suspend the work due to high winds;

                 (g)     Failed to follow it[s] own safety rules and procedures;

                 (h)     Failed to follow OSHA safety rules and procedures;

                 (i)     Failed to fulfill its onsite contractual safety obligations;

                 (j)     Failed to coordinate the work in a safe , suitable and proper

           manner;

                 (k)     Failed to schedule the work in a safe, suitable and proper

           manner;

                 (l)     Failed to require the crane operator to utilize the proper

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No. 1-09-1709

            booming procedures including proper boom length.”

     Count II, titled “Premises Liability,” incorporated the allegations in count I and also

alleged that Roszak “possessed, operated, managed, maintained and controlled or had a duty to

possess, operate, manage, maintain and control, both directly and indirectly, individually and

through its agents, servants and employees, the construction site.” Count II further alleged that

Roszak owed a duty of ordinary care to Hastings and others on the premises and that Roszak had

breached that duty in the various ways described above in count I. Both counts I and II conclude

with the following assertion: “That as a direct and proximate result of the negligence of

[Roszak], [Hastings] was struck by a load of structural steel, suffering serious and permanent

personal and pecuniary injuries.”

     The contract between Roszak and Rockford called for Rockford to add Roszak as an

additional insured to its commercial general liability policy, which Pekin has issued to Rockford

as named insured. Rockford’s policy contains the following endorsement amending the language

identifying who is insured under the policy:

                “Who Is An Insured (Section II) 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

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No. 1-09-1709

                negligence or statutory violation.”

Roszak tendered the complaint in the Hastings action to Pekin, claiming that it was an additional

insured under Rockford’s policy, and asked Pekin to defend it in the Hastings action. Pekin

declined the tender and sought a declaratory judgment claiming that it had no duty to defend

Roszak in the Hastings action. Pekin and Roszak filed cross-motions for summary judgment.

The trial court denied Pekin’s motion and granted Roszak’s motion, finding that Pekin owed

Roszak a duty to defend in the Hastings action. Pekin then filed this timely appeal.

                                            ANALYSIS

      Pekin argues on appeal that it owes Roszak no duty to defend in the Hastings action

because the facts pled in the Hastings complaint do not allege “liability incurred solely as a

result of some act or omission of the named insured” as stated in the additional insured

endorsement to Rockford’s general commercial liability policy. Roszak maintains that the

Hastings complaint raises the possibility of coverage and thus that Pekin owes it a duty to

defend.

      The construction of an insurance policy and a determination of the rights and obligations

thereunder are questions of law for the court to decide and are appropriate subjects for

disposition by way of summary judgment. Steadfast Insurance Co. v. Caremark RX, Inc., 359 Ill.

App. 3d 749, 755 (2005), quoting Crum & Froster Managers Corp. v. Resolution Trust Corp.,

156 Ill. 2d 384, 391 (1993). Summary judgment is appropriate where the pleadings, depositions,

and admissions on file, together with any affidavits and exhibits, when viewed in the light most

favorable to the nonmoving party, indicate 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 2008). We

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No. 1-09-1709

review a circuit court’s decision on a motion for summary judgment de novo. Outboard Marine

Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). “Summary judgment is a

drastic measure and should only be granted if the movant’s right to judgment is clear and free

from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.

     Our supreme court has laid out the following framework through which we should analyze

issues concerning an insurer’s duty to defend:

           “To determine an insurer’s duty to defend its insured, the court must look

           to the allegations of the underlying complaints. If the underlying

           complaints allege facts within or potentially within policy coverage, the

           insurer is obliged to defend its insured even if the allegations are

           groundless, false, or fraudulent. [Citation.] 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 within, or potentially within, the policy’s coverage.

           [Citation.] Moreover, if the underlying complaints allege several theories

           of recovery against the insured, the duty to defend arises even if only one

           such theory is within the potential coverage of the policy. [Citation.]

                 The underlying complaints and the insurance policies must be

           liberally construed in favor of the insured. Where a policy provision is

           clear and unambiguous, its language must be taken in its ‘plain, ordinary

           and popular sense.’ [Citation.] A provision is ambiguous if it is subject to

           more than one reasonable interpretation. [Citation.] All doubts and

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No. 1-09-1709

            ambiguities must be resolved in favor of the insured. [Citations.]”

            (Emphasis in original.) United States Fidelity & Guaranty Co. v. Wilkin

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

See also Outboard Marine Corp., 154 Ill. 2d at 125. In addition, the alleged conduct, rather than

the labeling of the claim in the complaint, determines whether the insurer has a duty to defend.

Steadfast Insurance, 359 Ill. App. 3d at 755-56. The insurer has the burden of establishing that

the facts alleged in the complaint do not trigger a duty to defend. Allstate Insurance Co. v.

Amato, 372 Ill. App. 3d 139, 146 (2007).

      We have previously considered two cases involving additional insured endorsements

substantially similar to the one in the case at bar and found that the additional insured

endorsement did not cover negligence directly alleged against an additional insured. Pekin

Insurance Co. v. United Parcel Service, Inc., 381 Ill. App. 3d 98, 104 (2008) (UPS); Pekin

Insurance Co. v. Beu, 376 Ill. App. 3d 294, 297 (2007). In UPS, Ron Aggen filed a complaint

alleging that he was working as a machinery installer for Swan Machinery Installation, Inc.,

(Swan) which United Parcel Service, Inc. (UPS), had contracted with to provide certain

conveyor repair work at one of its facilities. UPS, 381 Ill. App. 3d at 99-100. According to the

complaint, in the course of his work for Swan at the UPS facility, the ladder on which Aggen

was standing malfunctioned, causing Aggen to fall and sustain serious injuries. UPS, 381 Ill.

App. 3d at 99. After Aggen filed suit against UPS, among others, UPS tendered the complaint to

Pekin, claiming that it was covered as an additional insured under Swan’s insurance policy with

Pekin. UPS, 381 Ill. App. 3d at 100. Pekin denied the tender and filed for a declaratory judgment

claiming that it owed Swan no duty to defend. UPS, 381 Ill. App. 3d at 98-99. The trial court

                                                  7
No. 1-09-1709

granted summary judgment in favor of UPS and Pekin appealed that ruling. UPS, 381 Ill. App.

3d at 101.

      On review, we were asked to construe an additional insured endorsement containing the

following language: “ ‘ “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.” ’ ” UPS, 381 Ill. App. 3d at 103-04, quoting

Beu, 376 Ill. App. 3d at 294-95 (the same endorsement that is found in the case at bar). Justice

McBride authored the majority decision, which reasoned that “[s]ince the Aggen complaint

raised a direct claim of negligence against UPS, Swan cannot be solely responsible and Pekin

has no duty to defend.” UPS, 381 Ill. App. 3d at 102. The Aggen complaint employed a theory

of joint and several liability, alleging that it was the negligence of “ ‘Defendants, and each of

them’ ” that caused Aggen’s injuries. (Emphasis omitted.) UPS, 381 Ill. App. 3d at 104. Thus,

we reasoned, because the underlying complaint directly alleged that UPS was negligent based on

its own acts or omissions, the complaint did not allege that UPS was negligent “ ‘solely as a

result of some act or omission’ ” of Swan, the named insured. UPS, 381 Ill. App. 3d at 104,

quoting Beu, 376 Ill. App. 3d at 297. We found that the Pekin policy did not cover negligence

directly alleged against an additional insured. UPS, 381 Ill. App. 3d at 104.

      In Beu, Roger Beu had contracted with Castle Builders (Castle) to construct a residence in

Woodstock, Illinois. Beu, 376 Ill. App. 3d 294. As part of that contract, Castle added Beu as an

additional insured on its insurance policy with Pekin. Beu, 376 Ill. App. 3d 294. Walter Hall, one

of the employees of a subcontractor, fell and sustained injuries while working on the

construction site. Beu, 376 Ill. App. 3d at 295. Hall filed a negligence action naming Beu, among

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No. 1-09-1709

others, as a defendant. Beu, 376 Ill. App. 3d at 295. Beu tendered his defense to Pekin, claiming

that he was covered as an additional insured under Castle’s policy. Beu, 376 Ill. App. 3d at 296.

Pekin refused tender and filed a declaratory judgment action claiming that it owed Beu no duty

to defend. Beu, 376 Ill. App. 3d at 296.

      On appeal, we were asked to construe an additional insured endorsement, as we have here,

that read, in part: “ ‘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.’ ” Beu, 376 Ill. App. 3d at 294-95. As in

UPS, Hall’s underlying complaint alleged that the negligence of “ ‘Defendants, and each of

them’ ” caused his injuries. Beu, 376 Ill. App. 3d at 295. We found that because Hall had alleged

direct negligence on the part of Beu, the complaint did not allege negligence “ ‘solely as a result

of some act or omission of the named insured’ ” and thus was not covered by the additional

insured endorsement. Beu, 376 Ill. App. 3d at 297.

      We continue to agree with our earlier decisions finding that direct allegations of negligence

against an additional insured do not fall within coverage granted “ ‘only with respect to liability

incurred solely as a result of some act or omission of the named insured and not for [the

additional insured’s] own independent negligence or statutory violation.’ ” Beu, 367 Ill. App. 3d

at 297.

      In the instant case, as in UPS and Beu, the underlying complaint directly alleges negligence

on the part of Roszak, the additional insured. As noted, counts I and II of the Hastings complaint

allege that “as a direct and proximate result of the negligence of [Roszak], plaintiff was struck by

a load of structural steel.” The additional insured endorsement does not cover these claims

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No. 1-09-1709

because a direct allegation of negligence on the part of the additional insured is not “solely as a

result of some act or omission of the named insured.” Instead, the complaint alleges the injury

was caused by the additional insured’s “own independent negligence,” which the endorsement

expressly does not cover.

      Roszak asks us to disregard our decisions in UPS and Beu and instead follow our earlier

decision in Illinois Emcasco Insurance Co. v. Northwestern National Casualty Co., 337 Ill. App.

3d 356 (2003), upon which the trial court relied in its ruling in the instant case, and find that the

complaint raises a possibility of coverage. We agree with Roszak that an “insurer may refuse to

defend only when the complaint, considered in light of the insurance policy, precludes the

possibility of coverage.” Emcasco, 337 Ill. App. 3d at 358. However, we believe that the facts of

the instant case preclude the possibility of coverage and that the facts of Emcasco distinguish it

from the case at bar.

      In Emcasco, Balthazar Rodriguez sued the general contractor on a construction project,

R.A. Faganel Builders (Faganel), after he fell while working on the construction site. Emcasco,

337 Ill. App. 3d at 357. Faganel tendered its defense to Northwestern National Casualty Co.

(Northwestern), which had issued a policy to Kol Painting (Kol) naming Faganel as an additional

insured on the policy. Emcasco, 337 Ill. App. 3d at 357. The policy covered Faganel “ ‘only with

respect to liability imputed to [Faganel] as a result of negligent acts or omissions of [Kol].’ ”

Emcasco, 337 Ill. App. 3d at 358. This coverage for imputed liability is much broader than the

coverage provided by Pekin in the case at bar. Rodriguez’s complaint, which later added Kol as a

codefendant, alleged that both Faganel and Kol, “ ‘through [their] duly authorized agents’ ”

violated their duties to maintain a safe worksite. Emcasco, 337 Ill. App. 3d at 358. On its face,

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No. 1-09-1709

the Rodriguez complaint did not establish whether or not Kol would qualify as one of Faganel’s

“ ‘duly authorized agents.’ ” Emcasco, 337 Ill. App. 3d at 358. Northwestern refused Faganel’s

tender of its defense on the grounds that it was “ ‘unable to accept this tender of defense due to

many unknown facts.’ ” Emcasco, 337 Ill. App. 3d at 359. However, Northwestern never filed

for a declaratory judgment to determine whether it owed Faganel a duty to defend. Emcasco, 337

Ill. App. 3d at 359. Emcasco, Faganel’s general liability insurer, undertook Faganel’s defense

and then filed for a declaratory judgment claiming that Northwestern had breached its insurance

contract with Kol by refusing to defend Faganel. Emcasco, 337 Ill. App. 3d at 359. The trial

court found that while “ ‘the liability of [Faganel] may result from negligence of [Kol] within the

meaning of this additional insured endorsement,’ ” “ ‘realistically [the] pleadings do not fairly

represent the policy.’ ” Emcasco, 337 Ill. App. 3d at 359.

      In part because the trial court had noted the possibility of imputed liability, we found that

Northwestern owed Faganel a duty to defend. Emcasco, 337 Ill. App. 3d at 362. Northwestern

argued on appeal that certain documents, other than the Rodriguez complaint, established that

Kol was an independent contractor and thus not one of Faganel’s “ ‘duly authorized agents.’ ”

Emcasco, 337 Ill. App. 3d at 362. Therefore, Northwestern argued, Kol’s liability could not be

imputed to Faganel and thus Northwestern did not owe Faganel a duty to defend. Emcasco, 337

Ill. App. 3d at 362. However, we found that Northwestern was estopped from raising any policy

defenses to Faganel’s coverage because it had failed to bring a declaratory judgment action or

defend Faganel under a reservation of rights. Emcasco, 337 Ill. App. 3d at 362.

      As in Emasco, the Hastings complaint, on its face, does not establish that Rockford is one

of Roszak’s “agents, servants and employees.” However, unlike the insurer in Emcasco, Pekin is

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No. 1-09-1709

not estopped from raising policy defenses to coverage. Furthermore, we believe Roszak’s

reading of the holding in Emcasco goes too far. Justice McNulty wrote that “an insurer has a

duty to defend its insured against any complaint that leaves open the possibility of coverage.”

Emcasco, 337 Ill. App. 3d at 358. Roszak asks us to read this language as indicating that so long

as a complaint does not preclude or foreclose the possibility of a theory of liability that is

covered by an insurance policy, the insurer would owe a duty to defend. While we must construe

the complaint liberally in favor of the insured (Outboard Marine Corp., 154 Ill. 2d at 125), we

are still tied to the words of the complaint. We cannot read into the complaint something that is

not there. Instead, we must look to what the underlying plaintiff did allege and ascertain whether

those allegations contain facts supporting the elements of a theory of liability that is covered by

Pekin’s policy. Justice McNulty clearly stated that such a theory must be “supported by the

complaint.” Emcasco, 337 Ill. App. 3d at 361. A theory cannot be “supported by the complaint”

if the complaint does not allege facts to support the elements of that theory. Emcasco, 337 Ill.

App. 3d at 361. Thus, if the allegations in the Hastings complaint include sufficient facts to leave

open the possibility of coverage, then Pekin owes Roszak a duty to defend. Emcasco, 337 Ill.

App. 3d at 358. However, we will not read into the complaint facts that are not there.

      In the case at bar, the trial court found that “the Hastings complaint on its face admits of

the possibility that Roszak could be found liable under Count II for the acts of its ‘agent’

Rockford.” As noted, count II, titled “Premises Liability,” alleges that Roszak “possessed,

operated, managed, maintained and controlled or had a duty to possess, operate, manage,

maintain and control, both directly and indirectly, individually and through its agents, servants

and employees, the construction site.” Nowhere in count II does the complaint allege an agency

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No. 1-09-1709

relationship between Roszak and Rockford. In addition, neither count IX nor count X against

Rockford alleges an agency relationship between Roszak and Rockford. The complaint merely

states that Roszak was the general contractor on the site and that Rockford was the steel

fabricator. It also alleges that both Roszak and Rockford “owned and/or [were] in charge of the

erection and construction ongoing” at the site. Furthermore, count II of the complaint alleges

“[t]hat as a direct and proximate result of the negligence of [Roszak], [Hastings] was struck by a

load of structural steel, suffering serious and permanent personal and pecuniary injuries.” Thus,

count II alleges direct negligence on the part of Roszak; it does not allege that Roszak was

vicariously liable for the negligent acts or omissions of another.

      We do not believe that the facts alleged in this complaint allege an agency relationship

between Roszak and Rockford. Typically when a contractor engages a subcontractor to perform

work on a construction site, the subcontractor is an independent contractor. Thus, without any

allegations in the complaint suggesting otherwise, we must infer that Rockford was acting as an

independent contractor.

      Generally, “one who employs an independent contractor is not liable for the acts or

omissions of the latter.” Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 313 (2004).

The policy rationale underlying this rule is that a principal does not typically monitor and direct

the operative details of an independent contractor’s work, and thus is ill-equipped to prevent

negligent performance by the independent contractor. Martens, 347 Ill. App. 3d at 313-14.

      Section 414 of the Restatement (Second) of Torts provides an exception to this general

rule: “One who entrusts work to an independent contractor, but who retains the control of any

part of the work, is subject to liability for physical harm to others for whose safety the employer

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No. 1-09-1709

owes a duty to exercise reasonable care, which is caused by his failure to exercise his control

with reasonable care.” Restatement (Second) of Torts §414, at 387 (1965). In other words, a

general contractor who engages a subcontractor would have to retain control of some part of the

subcontractor’s work in order to be subject to vicarious liability for the subcontractor’s actions.

Comment a to section 414 provides further guidance on this issue:

                  “If the employer of an independent contractor retains control over

            the operative detail of doing any part of the work, he is subject to liability

            for the negligence of the employees of the contractor engaged therein,

            under the rules of that part of the law of Agency which deals with the

            relation of master and servant. The employer may, however, retain a

            control less than that which is necessary to subject him to liability as

            master. He may retain only the power to direct the order in which the

            work shall be done, or to forbid its being done in a manner likely to be

            dangerous to himself or others. Such a supervisory control may not

            subject him to liability under the principles of Agency, but he may be

            liable under the rule stated in this Section unless he exercises his

            supervisory control with reasonable care so as to prevent the work which

            he has ordered to be done from causing injury to others.” Restatement

            (Second) of Torts §414, Comment a, at 387 (1965).

As we have previously stated, “the general contractor, by retaining control over the operative

details of its subcontractor’s work, may become vicariously liable for the subcontractor’s

negligence; alternatively, even in the absence of such control, the general contractor may be

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No. 1-09-1709

directly liable for not exercising his supervisory control with reasonable care.” Cochran v.

George Sollitt Construction Co., 358 Ill. App. 3d 865, 874 (2005). Thus, section 414 provides

for two mutually exclusive theories of liability against a general contractor, depending on the

amount of control the general contractor retains over the details of the work of subcontractor.

See Cochran, 358 Ill. App. 3d at 874.

      We note that none of the cases cited by Roszak concern whether a general contractor or

other employer had retained sufficient control over the actions of an independent contractor to

cause it to become vicariously liable for the independent contractor’s negligence. Instead, these

cases focus only on whether a principal is liable for the acts of his agent, and ignore the issue of

an employer’s liability for the acts of an independent contractor. See Horwitz v. Holabird &

Root, 212 Ill. 2d 1 (2004); Woods v. Cole, 181 Ill. 2d 512 (1998); City of Chicago v. Roppolo,

113 Ill. App. 3d 602 (1983). Yet nothing in the Hastings complaint indicates that Rockford was

not an independent contractor, and so the question we must consider is whether the complaint

alleges that Roszak retained sufficient control over the details of Rockford’s work that it could

be held vicariously liable.

      Comment c to section 414 of the Restatement explains what must be established in order

for a general contractor to be vicariously liable for the acts of an independent contractor:

                  “In order for the rule stated in this Section to apply, the employer

            must have retained at least some degree of control over the manner in

            which the work is done. It is not enough that he has merely a general

            right to order the work stopped or resumed, to inspect its progress or to

            receive reports, to make suggestions or recommendations which need not

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No. 1-09-1709

            necessarily be followed, or to prescribe alterations and deviations. Such a

            general right is usually reserved to employers, but it does not mean that

            the contractor is controlled as to his methods of work, or as to operative

            detail. There must be such a retention of a right of supervision that the

            contractor is not entirely free to do the work in his own way.”

            Restatement (Second) of Torts §414, Comment c, at 387 (1965).

The Hastings complaint alleges that Roszak had the general rights of a supervisor but includes

no allegations that Roszak retained the right to supervise the details of Rockford’s work.

According to the complaint, Roszak “participated in coordinating the work being done and

designated various work methods, maintained and checked work progress and participated in the

scheduling of the work and inspection of the work. In addition *** [Roszak] had the authority to

stop the work, refuse the work and materials and order changes in the work***.” These

allegations appear to describe the general duties of a supervisor and not retained control over

operative details. While “ ‘[t]he question of coverage should not hinge on the draftsmanship

skills or whims of the plaintiff in the underlying action’ ” (UPS, 381 Ill. App. 3d at 106, quoting

International Insurance Co. v. Rollprint Packaging Products, Inc., 312 Ill. App. 3d 998, 1007

(2000)), nothing in the Hastings complaint indicates that Roszak retained sufficient control over

the details of Rockford’s work so as to be vicariously liable for the acts or omissions of

Rockford. Therefore, we read counts I and II of the Hastings complaint as alleging direct liability

against Roszak, which is not liability “ ‘incurred solely as a result of some act or omission of the

named insured’ ” as required for coverage. UPS, 381 Ill. App. 3d at 104, quoting Beu, 376 Ill.

App. 3d at 297.

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      Roszak asks us to distinguish the instant case from UPS and its predecessors because the

underlying complaints in those cases employed a theory of joint and several liability based on

the negligent actions of “defendants, and each of them.” We do not believe that a plaintiff’s

choice to assert joint and several liability as opposed to several liability has any effect on

whether the complaint alleges facts that would trigger liability for an additional insured “ ‘solely

as a result of some act or omission of the named insured.’ ” Beu, 376 Ill. App. 3d at 297. Instead,

the key point and focus is that the underlying complaints in each of those cases allege

independent negligence on the part of the additional insured. UPS, 381 Ill. App. 3d at 104; Beu,

376 Ill. App. 3d at 297; Village of Hoffman Estates v. Cincinnati Insurance Co., 283 Ill. App. 3d

1011, 1014 (1996) (finding that an underlying complaint was not based solely on the acts or

omissions of the named insured when it alleged liability directly against the additional insured).

      The Second District of this court recently considered a case concerning a substantially

similar version of the additional insured endorsement in the instant case. Pekin Insurance Co. v.

Hallmark Homes, L.L.C., 392 Ill. App. 3d 589 (2009). In Hallmark Homes, an employee of a

subcontractor on a construction project sued both the general contractor and the subcontractor,

among others, alleging negligence and premises liability. Hallmark Homes, 392 Ill. App. 3d at

591-92. The general contractor tendered its defense to Pekin, claiming that it was covered as an

additional insured on the subcontractor’s insurance policy with Pekin. Hallmark Homes, 392 Ill.

App. 3d at 592. Relying on our earlier decision in Cochran, our Second District read the

allegations in the underlying complaint that the general contractor “ ‘participated in coordinating

the work being done and designated various work methods, maintained and checked work

progress and participated in [the] scheduling of the work and the inspection of the work’ ” as

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establishing that the general contractor had retained control over the operative details of the

subcontractor’s work. Hallmark Homes, 392 Ill. App. 3d at 594, citing Cochran, 358 Ill. App. 3d

at 874. With this finding, our Second District found that the underlying complaint alleged that

the general contractor was vicariously liable for the negligence of the subcontractor under

section 414 of the Restatement. Hallmark Homes, 392 Ill. App. 3d at 594; Restatement (Second)

of Torts §414 (1965). We do not agree with this reading of Cochran and section 414 of the

Restatement. Comment a to section 414 indicates a general contractor that retains the power to

coordinate the order in which work is done and to stop work that is performed dangerously, as in

the complaints in both Hallmark Homes and the instant case, does not retain sufficient control so

as to be vicariously liable for the subcontractor’s negligence. Restatement (Second) of Torts

§414, Comment a (1965).

      Finally, Roszak raises the specter of illusory coverage in the case at bar, arguing that if we

were to find that the additional insured endorsement did not provide coverage in the underlying

action, then the coverage provided would be a nullity. We find this argument unpersuasive.

Essentially, the instant case involves one theory of liability arising out of section 414 of the

Restatement and the additional insured endorsement provides coverage for the other. See

Restatement (Second) of Torts §414 (1965). While the endorsement does not cover situations of

the additional insured’s own negligence, it does cover situations where the additional insured

retained sufficient control over the operative details of the named insured’s work such so as to

become vicariously liable for the acts or omissions of the named insured. See Restatement

(Second) of Torts §414, Comment a (1965). If we were to adopt Roszak’s construction of the

additional insured endorsement in the case at bar, we would be making a new contract of

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insurance for the parties—something which we cannot do. Stark v. Illinois Emcasco Insurance

Co., 373 Ill. App. 3d 804, 811 (2007).

                                          CONCLUSION

      Accordingly, for the foregoing reasons, we reverse the judgment of the circuit court of

Cook County granting summary judgment to defendant Roszak and remand and order that the

circuit court enter summary judgment in favor of plaintiff Pekin. We find that plaintiff Pekin

does not owe Roszak a duty to defend in the Hastings action.

      Reversed and remanded.

      CAHILL, P.J., and J. GORDON, J., concur.




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