                                       2015 IL App (1st) 141408
                                  Nos. 1-14-1408 & 1-14-3091 (cons.)
                                      Opinion filed July 15, 2015
                                                                                      Third Division


                                                IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT


     CERTAIN UNDERWRITERS AT LLOYD'S
                                                               Appeal from the Circuit Court
     LONDON, Subscribing to Certificate No.
                                                               of Cook County.
     CVC000537,

            Plaintiff-Appellee,
                                                               No. 13 CH 18775
     v.
                                                               The Honorable
     THE BURLINGTON INSURANCE COMPANY
                                                               Rodolfo Garcia,
     and BARNABUS SUTTON,
                                                               Judge, presiding.
            Defendants-Appellants.


            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Lavin and Mason concurred in the judgment and opinion.

                                                 OPINION

¶1          Plaintiff, Certain Underwriters at Lloyd's, London, Subscribing to Certificate No.

     CRCC000537 (Underwriters), issued an insurance policy to Rada Development LLC (Rada) for

     a commercial development project. Barnabus Sutton, an employee of C&B Steel, Inc., a project

     subcontractor, sued Rada for injuries he sustained in an accident at the construction site.

     Underwriters filed a declaratory judgment action against C&B Steel's insurer, The Burlington

     Insurance Company (TBIC), seeking a judicial declaration that, under the TBIC policy, Rada

     qualified as an additional insured. The circuit court held that TBIC had the sole duty to defend
     1-14-1408 & 1-14-3091


     Rada as an additional insured and ordered TBIC to reimburse Underwriters for all reasonable

     costs in defending Rada. TBIC appealed, asserting that the circuit court erred in finding that

     TBIC has the sole duty to defend Rada, and asked that the order be reversed and a new order

     entered finding TBIC to be a co-primary insurer obligated to share in the defense with

     Underwriters.

¶2          In a separate case involving the same tort claim, Pekin Insurance Company (Pekin),

     which issued a policy to Chicago Masonry Construction, Inc., another subcontractor, sought a

     declaration that Rada was not an additional insured under its policy. (Pekin named Rada but not

     Underwriters as a defendant in that declaratory judgment action.) After the trial court found

     Pekin had no duty to defend Rada in the Sutton lawsuit, Underwriters filed a petition to vacate

     the trial court's judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS

     5/2-1401 (West 2012)), asserting Underwriters was a necessary party. The circuit court granted

     Underwriters' petition and vacated the judgment. The appellate court affirmed. Pekin Insurance

     Co. v. Rada Development, LLC, 2014 IL App (1st) 133947. Thereafter, in this case, TBIC filed a

     motion to vacate under section 2-1401, contending that Rada failed to name Pekin, a necessary

     party. The circuit trial court denied the petition. The trial court found Pekin did not acquire the

     status of a necessary party and TBIC had a duty to reimburse Underwriters' for its defense costs.

     Consolidated before us are TBIC's appeals of the order rejecting Pekin as a necessary party and

     the order granting Underwriters its reasonable defense costs.

¶3          We affirm. Pekin does not have the status of a necessary party to this coverage dispute.

     The court only had to determine which insurer, as between Underwriters and TBIC, owed a

     primary duty to defend Rada. Further, the trial court did not err in finding that TBIC's "other




                                                     -2-
     1-14-1408 & 1-14-3091


     insurance" clause rendered it primary to the Underwriters policy and responsible for

     Underwriters' defense costs.

¶4                                          BACKGROUND

¶5          Rada owns and is the developer of a commercial property located in Chicago ("the

     project"). Rada contracted with Heartland Construction Group (Heartland) to act as general

     contractor. On August 1, 2006, Heartland entered into a subcontract agreement with C&B Steel,

     and as part of that agreement, C&B Steel was required to list Heartland as an additional insured

     on its liability insurance policy. Later, Rada took over as the general contractor of the project,

     under a “reassignment agreement” between Rada and Heartland. Heartland agreed to assign all

     of its interests in any subcontract agreement for the project, including its subcontract agreement

     with C&B Steel.

¶6          On November 15, 2006, Barnabus Sutton, an employee of C&B Steel, sustained injuries

     in a construction related accident. Sutton sued Rada and others to recover for his injuries. (While

     these consolidated appeals were pending, the underlying action settled for $240,000 and was

     dismissed.) Underwriters tendered Rada's defense to TBIC, based on Rada's status as an

     additional insured under the TBIC policy. TBIC denied the tender, contending that the policy

     excluded Sutton's suit from coverage under the Employer's Liability Exclusion provision and that

     Rada did not qualify as an additional insured under the policy.

¶7          On August 19, 2013, Underwriters filed a complaint seeking a declaration that: (i) Rada

     qualified as an additional insured, (ii) TBIC should reimburse Underwriters for all defense costs,

     (iii) the employer's liability exclusion did not apply to Rada, and (iv) TBIC was otherwise

     estopped from asserting any coverage defenses. TBIC denied the material allegations of

     Underwriters' complaint and filed a counterclaim based on the employer liability exclusion.



                                                    -3-
       1-14-1408 & 1-14-3091


¶8             After argument, the circuit court entered an order on March 17, 2014, granting

       Underwriters' motion, in part, denying TBIC's cross-motion, in part, and declining to reach the

       estoppel issue. The court found that "TBIC has the sole duty to defend Rada *** as an additional

       insured and that TBIC must reimburse Underwriters all reasonable defense costs incurred

       defending Rada in the [underlying] action from July 23, 2013 to the present." The court also held

       that: (i) Rada qualified as an additional insured under the TBIC policy, and the assignment of the

       contract requiring Rada to be named as an additional insured was fully executed before the date

       of loss; (ii) the employer's liability exclusion in the TBIC policy did not apply to bar coverage

       for Rada; (iii) the amended definition of employee did not expand the scope of the employer

       liability exclusion in the TBIC policy; and (iv) TBIC's "other insurance" clause rendered it

       primary to the Underwriters' policy. TBIC filed a motion to reconsider only the circuit court's

       ruling that the "other insurance" clause rendered it primary to the Underwriters policy, which the

       trial court denied.

¶9             On May 6, 2014, the circuit court entered a money judgment in favor of Underwriters and

       against TBIC for 100% of the reasonable defense fees and costs Underwriters incurred in

       defending Rada, which amounted to $107,277.88, plus prejudgment interest in the amount of

       $4,325.55, for a total judgment of $111,603.43. TBIC filed a notice of appeal asserting that the

       trial court erred in finding that it had the sole duty to defend Rada.

¶ 10           On July 23, 2014, while TBIC's appeal of the money judgment was pending, the appellate

       court issued an opinion in Pekin Insurance Co. v. Rada Development, LLC, 2014 IL App (1st)

       133947, holding that Underwriters should have been named as a necessary party to the

       declaratory action filed by Pekin pertaining to the same accident and underlying lawsuit. After

       learning of the Pekin case, TBIC filed a section 2-1401 petition to vacate the trial court's March



                                                        -4-
       1-14-1408 & 1-14-3091


       17 and May 5 orders. TBIC contended that the orders were void for lack of joinder of a

       necessary party, namely Pekin, to the declaratory action. (TBIC also filed a motion to vacate and

       for sanctions under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994) in the appellate court,

       which was denied).

¶ 11          On September 17, 2014, the circuit court heard arguments on TBIC's section 2-1401

       petition to vacate. The court denied the petition, finding Pekin did not occupy the status of a

       necessary party to the dispute and its order directing TBIC to reimburse Underwriters' defense

       costs was not void. The court noted that TBIC's challenge was limited to the other insurance

       clause ruling only and that TBIC did not contest that it had a duty to defend Rada. On October 6,

       2014, TBIC filed a notice of appeal from the September 17 order. TBIC also filed a motion to

       consolidate the appeals, which we granted.

¶ 12                                              ANALYSIS

¶ 13                                            Necessary Party

¶ 14          TBIC argues the trial court erred in denying its section 2-1401 motion to vacate because

       the judgment was void where a necessary party—Pekin Insurance—was not joined. TBIC asserts

       that because Pekin may be liable to pay some of Underwriters' defense costs, it was a necessary

       party, and thus, the order should be vacated and the case remanded with instructions that this

       case be consolidated with the Pekin case. TBIC asserts that by making it responsible for 100% of

       Underwriters' defense costs, the trial court elevated its "other insurance" clause over the "other

       insurance" clauses in the policies issued by other involved insurers, including Pekin.

¶ 15          "A necessary party is one whose participation is required to (1) protect its interest in the

       subject matter of the controversy which would be materially affected by a judgment entered in its

       absence; (2) reach a decision protecting the interests of the parties already before the court; or (3)



                                                        -5-
       1-14-1408 & 1-14-3091


       allow the court to completely resolve the controversy.” Zurich Insurance Co. v. Baxter

       International, Inc., 275 Ill. App. 3d 30, 37 (1995), aff'd as modified, 173 Ill. 2d 235 (1996). An

       order entered without jurisdiction over a necessary party will be void. Id. The failure to join a

       necessary party may be raised at any time: by the parties or by the trial court or by the appellate

       court sua sponte. Lah v. Chicago Title Land Trust Co., 379 Ill. App. 3d 933, 940 (2008).

¶ 16          TBIC maintains that where a dispute involves the obligation that two insurers may owe to

       the same mutual insured, both insurers are necessary parties to any case adjudicating the duty to

       defend and allocating defense costs. TBIC states that by not joining Pekin, TBIC's interests are

       not protected and the court may not completely resolve the controversy due to an inability to

       allocate some of the defense costs to Pekin. Thus, TBIC asserts, the circuit court order allocating

       to TBIC 100% of Underwriters' defense costs is void.

¶ 17          For support, TBIC relies on Rada Development, 2014 IL App (1st) 133947, and contends

       that the appellate court held that all insurers who are claimed to have a duty to defend Rada in

       the underlying case qualify as necessary parties to a declaratory complaint that seeks to

       adjudicate those rights. In Rada Development, Underwriters defended Rada in the underlying

       action under a reservation of rights. Id. ¶ 5. Underwriters tendered Rada's defense in the

       underlying case to Pekin and Pekin's named insured, Chicago Masonry Construction, Inc. Pekin

       denied the tender and filed a declaratory judgment action naming Rada but not Underwriters as a

       defendant, seeking a declaration that it had no duty to defend Rada in the Sutton case. Id. ¶ 7.

       Pekin obtained a default judgment against Rada. Id. ¶ 13. Underwriters filed a section 2-1401

       petition to vacate the default judgment and a motion to intervene under section 2-408(a)(2) of the

       Code (735 ILCS 5/2-408(a)(2) (West 2012)), contending it was a necessary party to the Pekin

       action but never joined. Rada, 2014 IL App (1st) 133947, ¶ 16. The circuit court granted the



                                                      -6-
       1-14-1408 & 1-14-3091


       section 2-1401 petition to vacate. The trial court reasoned that Underwriters possessed necessary

       party status in Pekin's declaratory judgment action because it had an interest in the subject matter

       that was materially affected by the default judgment order. Id. ¶ 17.

¶ 18          The appellate court affirmed, finding that Underwriters was a necessary party in the

       Pekin declaratory judgment action because the default judgment required Underwriters to

       continue defending Rada in the Sutton suit, "despite its attempt to tender Rada's defense to Pekin

       ***; thus, the judgment materially affected the interest of [Underwriters]." Id. ¶ 21. Pekin's

       petition for leave to appeal to the Illinois Supreme Court was denied. Pekin Insurance Co. v.

       Rada Development LLC, No. 118203 (Ill. Nov. 26, 2014). (On remand, TBIC filed a petition to

       intervene in the Pekin declaratory judgment action, which was granted, and TBIC filed a

       counterclaim in that case seeking a declaration that Pekin had a duty to defend Rada in the

       Sutton case and a cause of action based on equitable contribution.)

¶ 19          To repeat, based on the holding in Rada Development, TBIC contends that all insurers

       who are claimed to have a duty to defend Rada in the underlying case are necessary parties to a

       declaratory judgment action that seeks to adjudicate those rights. TBIC further contends Pekin is

       a necessary party because Pekin may be found to have a duty to defend Rada and thus, may be

       liable for some of Underwriters' defense costs. Thus to fully adjudicate TBIC's rights and

       obligations as to Rada, Pekin must be named a party. We disagree. Unlike in Rada Development,

       the circuit court's ruling did not materially affect Pekin's interests. The circuit court's order held

       that Rada was an additional insured under the TBIC policy, that TBIC owes a duty to defend

       Rada in the Sutton case, and that because Underwriters' policy is excess to the TBIC policy,

       Underwriters does not have a duty to defend Rada. Thus, the circuit court only addressed the

       duties and obligations as between TBIC and Underwriters and did not address Pekin's rights or



                                                        -7-
       1-14-1408 & 1-14-3091


       obligations. If indeed Pekin is found to have a duty to defend Rada, a matter which is still to be

       decided, TBIC, which intervened in the Pekin case, may seek from Underwriters its share of

       defense costs.

¶ 20          TBIC also contends that if we affirm the order denying its petition to vacate, our opinion

       will be advisory because the issue of Pekin's duty to defend has yet to be ruled on by the trial

       court. See Golden Rule Insurance Co. v. Schwarz, 203 Ill. 2d 456, 469 (2003). For support, TBIC

       relies on Pielet v. Pielet, 2012 IL 112604. In Pielet, the Illinois Supreme Court remanded a

       breach of contract lawsuit because of a genuine issue of material fact as to whether certain

       parties' contractual obligations were assumed by another party through novation. The court stated

       that two counts of the plaintiff's complaint, alleging breach of contract, would come into play if

       and only if there proved to have been no novation. Because that remained an open question, the

       court found that any decision would be speculative and premature. Pielet, 2012 IL 112604, ¶ 57.

¶ 21          TBIC asserts that as in Pielet, whether the circuit court correctly allocated 100% of the

       defense fee burden to TBIC cannot be determined until the trial court resolves Pekin's duty to

       defend. But unlike in Pielet, there are no open questions concerning the relationship between

       Underwriters and TBIC. TBIC acknowledges it has a duty to defend Rada, and the only issue

       raised in this declaratory action involves whether the Underwriters policy was excess to or equal

       to the TBIC policy. Pekin does not assume the status of a necessary party for the court to make

       this determination. Thus, this opinion does not qualify as advisory.

¶ 22                                      "Other Insurance" Clauses

¶ 23          Alternatively, TBIC argues that even if the section 2-1401 petition was properly denied,

       we should reverse on the basis that TBIC and Underwriters are co-primary insurers. The other

       insurance clauses in both TBIC's policy and in Underwriters' policy are identical and thus,



                                                       -8-
       1-14-1408 & 1-14-3091


       according to TBIC, both parties provide co-primary coverage and are equally liable for

       defending Rada in the underlying action. We disagree.

¶ 24          The TBIC and Underwriters' policies contain the following other insurance clause

       provisions:

                     "4. Other Insurance

                        If other valid and collectible insurance is available to the insured for a loss we

                     cover under Coverages A or B of this Coverage Part, our obligations are limited as

                     follows:

                        a. Primary Insurance. This insurance is primary except when b. below applies.

                     ***

                        b.       Excess Insurance. This insurance is excess over:

                                                      ***

                     (2) Any other primary insurance available to you covering liability for damages

                        arising out of the premises or operations for which you have been added as an

                        additional insured by attachment of an endorsement."

¶ 25          Both policies state that "the words 'you' and 'your' refer to the Named Insured shown in

       the Declarations ***." In the Underwriters' policy, Rada is the named insured. Rada is an

       additional insured in the TBIC policy. Thus, the Underwriters' excess insurance provision

       applies, and Underwriters policy is excess over "[a]ny other primary insurance available to

       [Rada]." Conversely, under the TBIC policy, C&B Steel is the named insured. Because C&B

       Steel has not been added as an additional insured to the Underwriters' policy, TBIC's excess

       other insurance provision does not apply. Thus, under the language of the other insurance

       provision of the policies, TBIC's policy is primary and Underwriters' policy is excess.


                                                        -9-
       1-14-1408 & 1-14-3091


¶ 26          Moreover, we reject TBIC's argument that both policies, which contain the same "other

       insurance" clause, are "mutually repugnant" and cancel each other out. TBIC relies on Ohio

       Casualty Insurance Co. v. Oak Builders, Inc., 373 Ill. App. 3d 997 (2007). The Oak Builders

       court held irreconcilable identical “other insurance” clauses contained in two policies. The

       policies converted otherwise primary coverage into excess coverage whenever primary coverage

       was available. The court concluded that this situation required the insurers to share the cost of

       defending and indemnifying the underlying tort suit. Oak Builders, 373 Ill. App. 3d at 1004. One

       reason the “other insurance” clauses were determined to be irreconcilable was the facts led to a

       different result depending on which policy one read first. Id. at 1003. While the provisions

       should be reconciled whenever possible to effectuate the intent of the parties, the majority rule

       provides that the court cannot arbitrarily pick one policy to be read first and undermine the

       intention of the insurer whose policy is read second. Id. at 1001 (deeming identical “other

       insurance” clauses to be incompatible is fair when no rational basis for applying clause of one

       policy and refusing to apply clause of other policy (citing Putnam v. New Amsterdam Casualty

       Co., 48 Ill.2d 71, 78–79 (1970))). Here, the two “other insurance” provisions are reconcilable.

       Regardless of which policy one reads first, the contracting parties' words and apparent intent do

       not change; the two policies constitute compatible primary and excess policies, with TBIC's

       policy being primary and Underwriters' policy being excess. Thus, the circuit court properly

       ruled that Underwriters' policy provided excess coverage over the TBIC policy.

¶ 27          We affirm the circuit court orders entering judgment in Underwriters' favor and denying

       TBIC's petition to vacate.

¶ 28          Affirmed.




                                                     -10-
