                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




       Indiana Insurance Co. v. Powerscreen of Chicago, Ltd., 2012 IL App (1st) 103667




Appellate Court            INDIANA INSURANCE COMPANY, Plaintiff-Appellant, v.
Caption                    POWERSCREEN OF CHICAGO, LTD., Defendant-Appellee, (Terrell
                           Materials Corporation, John Kohn and Colleen Kohn,
                           Defendants).–POWERSCREEN OF CHICAGO, LTD., Counterplaintiff-
                           Appellee, v. INDIANA INSURANCE COMPANY, Counterdefendant-
                           Appellant.–HARTFORD FIRE INSURANCE COMPANY, Intervenor
                           Plaintiff-Appellee and Cross-Appellant, v. INDIANA INSURANCE
                           COMPANY, Intervenor Defendant-Appellant and Cross-Appellee.



District & No.             First District, Second Division
                           Docket Nos. 1-10-3667, 1-11-1681, 1-11-1846 cons.


Filed                      June 29, 2012
Rehearing denied           August 20, 2012


Held                       In an insurance dispute arising from a construction accident involving
(Note: This syllabus       rented equipment, the rental company was an additional insured under the
constitutes no part of     policy of the contractor renting the equipment and the rental company’s
the opinion of the court   insurer was entitled to reimbursement for the sums it paid defending the
but has been prepared      rental company in the underlying personal injury action, since the liability
by the Reporter of         at issue in the underlying action arose out of the “ongoing operations
Decisions for the          performed” for the rental company by the contractor for purposes of the
convenience of the         provision of the rental agreement requiring the contractor to name the
reader.)
                           rental company as an additional insured under its policy.

Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-40309; the
Review                     Hon. Michael B. Hyman, Judge, presiding.
Judgment                   Affirmed and remanded with directions.


Counsel on                 Hinshaw & Culbertson LLP, of Chicago (Thomas M. Hamilton, Jr.,
Appeal                     Christine Olson McTigue, and Kent J. Cummings, of counsel), for
                           appellant.

                           Tressler LLP, of Chicago (Michael J. Duffy and Matthew J. Devereux, of
                           counsel), for appellees.



Panel                      JUSTICE CUNNINGHAM delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Quinn and Justice Connors concurred in the judgment
                           and opinion.



                                             OPINION

¶1          This consolidated appeal arises from the November 8, 2010 order entered by the circuit
        court of Cook County, which denied a motion for summary judgment in a declaratory
        judgment action against the plaintiff-appellant, Indiana Insurance Company (Indiana
        Insurance), but granted a cross-motion for summary judgment in favor of the
        counterplaintiff-appellee, Powerscreen of Chicago, Ltd. (Powerscreen), and the intervenor
        plaintiff-appellee, Hartford Fire Insurance Company (Hartford). This appeal also arises from
        the circuit court’s January 26, 2011 order denying Hartford’s motion for entry of monetary
        judgment against Indiana Insurance, and the May 24, 2011 order denying Hartford’s motion
        to reconsider the January 26, 2011 ruling. On cross-appeal, (1) Indiana Insurance argues that
        the circuit court erred in granting summary judgment in favor of Powerscreen and Hartford;
        and (2) Powerscreen and Hartford argue that the circuit court properly granted summary
        judgment in their favor but that Hartford is entitled to reimbursement from Indiana Insurance.
        For the following reasons, we affirm the November 8, 2010 judgment of the circuit court of
        Cook County granting summary judgment in favor of Powerscreen and Hartford, but remand
        the matter to the circuit court solely for the determination of the amount of reimbursement
        that Indiana Insurance owed Hartford.


¶2                                       BACKGROUND
¶3          In February 2008, Powerscreen, which was in the business of owning, leasing and
        repairing construction equipment, entered into a rental agreement whereby Powerscreen

                                                 -2-
     agreed to lease a concrete crusher to Terrell Materials Corporation (Terrell Materials).
     Pursuant to the terms of the rental agreement, Terrell Materials was required to, at its own
     costs, “operate and maintain the equipment with factory authorized parts and to make any
     repairs which may become necessary,” and “to return the equipment to [Powerscreen] in the
     same condition as received.” Further, the rental agreement specified that Terrell Materials
     agreed to name Powerscreen as an additional insured on its liability coverage policy.
¶4       On July 16, 2008, John Kohn (John), an employee of Noel Ramos Construction
     Company (Noel Construction), was allegedly injured in the process of moving the concrete
     crusher from an Interstate 294 road construction site near the Willow Road overpass area to
     the Lake Cook Road overpass in Cook County, Illinois. Subsequently, John and his wife,
     Colleen Kohn (Colleen), filed a personal injury lawsuit against, inter alia, Terrell Materials
     and Powerscreen. See Kohn v. Terrell Materials Corp., No. 08 L 007928 (Cir. Ct. Cook Co.)
     (the underlying lawsuit).
¶5       At the time of John’s injury, Terrell Materials was insured by a commercial general
     liability insurance policy issued by Indiana Insurance. The Indiana Insurance policy contained
     the following pertinent provisions:
            “I. ADDITIONAL INSUREDS–BY CONTRACT, AGREEMENT OR PERMIT
            1. Paragraph 2 under SECTION II WHO IS AN INSURED is amended to include as
        an insured any person or organization when you and such person or organization have
        agreed in writing in a contract, agreement or permit that such person or organization be
        added as an additional insured on your policy to provide insurance such as is afforded
        under this Coverage Part. Such person or organization is an additional insured only with
        respect to liability arising out of:
                a. Your ongoing operations performed for that person or organization; ***
        With respect to provision 1.a. above, a person’s or organization’s status as an insured
        under this endorsement ends when your operations for that person or organization are
        completed.”
     Powerscreen was insured by a separate commercial general liability policy issued by
     Hartford.
¶6       On December 29, 2008, Hartford, on behalf of Powerscreen as its insurer, formally
     tendered defense and indemnification of the underlying lawsuit to Indiana Insurance, stating
     that Powerscreen was an “additional insured” under the Indiana Insurance policy and
     requesting that Hartford be reimbursed for all costs it had incurred in defending Powerscreen
     in the underlying lawsuit.
¶7       On October 20, 2009, Indiana Insurance denied the tender by stating that it owed no duty
     to defend or indemnify Powerscreen against the claims asserted in the underlying lawsuit.
     On that same day, October 20, 2009, Indiana Insurance filed a complaint for declaratory
     judgment against Powerscreen, Terrell Materials, John and Colleen which requested the court
     to determine the rights and liabilities of the parties with respect to the Indiana Insurance

                                              -3-
       policy; to declare that Powerscreen was neither a named insured nor an additional insured
       under the terms of the Indiana Insurance policy; and to declare that Indiana Insurance had no
       obligation to defend or indemnify Powerscreen in the underlying lawsuit.
¶8         On January 28, 2010, the circuit court granted Hartford leave to intervene in the instant
       cause of action and granted leave to Hartford and Powerscreen to file a countercomplaint
       against Indiana Insurance for declaratory judgment. On February 2, 2010, Hartford and
       Powerscreen filed a “countercomplaint and intervenor complaint for declaratory judgment”
       against Indiana Insurance, requesting that the court enter a judgment finding that Indiana
       Insurance owed a duty to defend and indemnify Powerscreen in the underlying lawsuit, and
       that Indiana Insurance must repay Hartford for all defense and indemnity sums paid for
       Powerscreen in the underlying lawsuit.
¶9         On April 9, 2010, Indiana Insurance filed a motion for summary judgment, arguing that
       it had no obligation to defend or indemnify Powerscreen in the underlying lawsuit and that
       it owed no duties or obligations to Hartford with respect to the underlying lawsuit.
       Subsequently, Powerscreen and Hartford filed a cross-motion for summary judgment,
       asserting that Indiana Insurance had the sole and primary obligation to defend and indemnify
       Powerscreen in the underlying lawsuit.
¶ 10      On about May 3, 2010, the underlying lawsuit was settled.
¶ 11       On November 8, 2010, the circuit court denied Indiana Insurance’s motion for summary
       judgment, granted Powerscreen and Hartford’s cross-motion for summary judgment, and
       stated that “Indiana must reimburse Hartford the sums it paid to defend Powerscreen in the
       [underlying] suit, with costs.”
¶ 12       On December 6, 2010, Hartford filed a motion for entry of monetary judgment (motion
       for monetary judgment), requesting that judgment be entered in its favor and against Indiana
       Insurance in the amount of $254,621.83 for defense costs expended by Hartford on behalf
       of Powerscreen in the underlying lawsuit.
¶ 13      On December 7, 2010, Indiana Insurance filed a first notice of appeal (No. 1-10-3667),
       which appealed the circuit court’s November 8, 2010 order denying its motion for summary
       judgment and granting Powerscreen and Hartford’s cross-motion for summary judgment.
¶ 14      On January 4, 2011, Indiana Insurance filed a response to Hartford’s motion for monetary
       judgment, asserting that Hartford’s motion was not properly supported by documentation
       and, thus, should be denied.
¶ 15       On January 26, 2011, the circuit court denied Hartford’s motion for monetary judgment
       without prejudice. On February 24, 2011, Hartford filed a motion to reconsider the circuit
       court’s January 26, 2011 ruling. On May 24, 2011, the circuit court denied the motion to
       reconsider, stating that pursuant to Illinois Supreme Court Rule 303(a)(2) (eff. May 30,
       2008), Indiana Insurance’s December 7, 2010 notice of appeal became effective when the
       court denied Hartford’s motion for monetary judgment on January 26, 2011, at which time
       the court was divested of its jurisdiction over the matter.


                                                -4-
¶ 16      On June 10, 2011, Indiana Insurance filed a second notice of appeal before this court,
       which appealed the circuit court’s November 8, 2010 order (No. 1-11-1681). On June 22,
       2011, Powerscreen and Hartford filed a notice of cross-appeal, which appealed the circuit
       court’s January 26, 2011 order denying Hartford’s motion for monetary judgment (No. 1-11-
       1846).


¶ 17                                         ANALYSIS
¶ 18       The relevant inquiry before us on appeal is whether the circuit court erred in granting
       summary judgment in favor of Powerscreen and Hartford, by finding that Powerscreen was
       an additional insured under Indiana Insurance’s policy and that Indiana Insurance must
       reimburse Hartford for the sums it paid to defend Powerscreen in the underlying lawsuit.
¶ 19       Indiana Insurance argues that Powerscreen was not an additional insured under the
       Indiana Insurance policy issued to Terrell Materials because Terrell Materials was not
       performing an “ongoing operation” for Powerscreen at the time of John’s injury, nor did
       Terrell Materials’ obligations under the rental agreement constitute “ongoing operations”
       conducted for Powerscreen.
¶ 20       Powerscreen and Hartford contend that Indiana Insurance had the sole and primary
       obligation to defend Powerscreen because Powerscreen was an additional insured under
       Indiana Insurance’s policy as a result of the ongoing operations performed by Terrell
       Materials under the terms of the rental agreement. Further, they argue that Indiana Insurance,
       by paying sums on behalf of Powerscreen in its settlement of the underlying lawsuit, in
       effect, had admitted to defend and indemnify Powerscreen.
¶ 21       As a preliminary matter, we must determine whether this court has jurisdiction over the
       parties’ cross-appeals. See Palmolive Tower Condominiums, LLC v. Simon, 409 Ill. App. 3d
       539, 542, 949 N.E.2d 723, 727 (2011) (a reviewing court has an independent duty to consider
       whether it has jurisdiction over an appeal). While Powerscreen and Hartford do not challenge
       this court’s jurisdiction over Indiana Insurance’s appeal of the circuit court’s November 8,
       2010 order granting summary judgment in their favor, Indiana Insurance asserts that this
       court is without jurisdiction to review the circuit court’s January 26, 2011 order denying
       Hartford’s motion for monetary judgment and its May 24, 2011 order denying Hartford’s
       motion to reconsider the January 26, 2011 ruling.
¶ 22       Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) provides for appeal as of right from
       final judgments. In re Marriage of Link, 362 Ill. App. 3d 191, 192, 839 N.E.2d 678, 680
       (2005). A final judgment is one that “ ‘fixes absolutely and finally the rights of the parties
       in the lawsuit; it is final if it determines the litigation on the merits so that, if affirmed, the
       only thing remaining is to proceed with the execution of the judgment.’ ” (Internal quotation
       marks omitted.) Id. (quoting In re M.M., 337 Ill. App. 3d 764, 771, 786 N.E.2d 654, 659-60
       (2003)). In the present case, the circuit court’s November 8, 2010 order granting summary
       judgment in favor of Powerscreen and Hartford, which determined that Powerscreen was an
       additional insured under Indiana Insurance’s policy and that Indiana Insurance must

                                                  -5-
       reimburse Hartford for the sums it paid to defend Powerscreen in the underlying lawsuit, was
       a final and appealable order which fixed absolutely and finally the rights of the parties in the
       declaratory judgment actions. See Pritza v. Village of Lansing, 405 Ill. App. 3d 634, 639, 940
       N.E.2d 1164, 1169 (2010) (“it is well established that a declaratory judgment has the force
       of a final judgment with respect to the rights of the parties subject to that judgment”); see
       Bank of America, N.A. v. Carpenter, 401 Ill. App. 3d 788, 795, 929 N.E.2d 570, 577-78
       (2010) (where opposing parties have filed cross-motions for summary judgment, the circuit
       court’s order denying one but granting the other motion for summary judgment is a final and
       appealable order). On December 7, 2010, within 30 days of the entry of the November 8,
       2010 judgment, Indiana Insurance filed a timely notice of appeal pursuant to the mandates
       of Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008). We find that while our inquiry
       regarding this court’s jurisdiction over the appeal from the circuit court’s November 8, 2010
       order would normally cease at this juncture in our analysis, the unique set of procedural facts
       in this case compels us to further determine whether we have jurisdiction over the denial of
       Hartford’s subsequent motion for monetary judgment and what effect, if any, it had on the
       finality and appealability of the November 8, 2010 order.
¶ 23        Section 2-701(a) of the Code of Civil Procedure (the Code) provides that a declaration
       of rights has the force of a final judgment whether or not any consequential relief is or could
       be claimed. 735 ILCS 5/2-701(a) (West 2010). Section 2-701(c) of the Code further provides
       that “[i]f further relief based upon a declaration of right becomes necessary or proper after
       the declaration has been made, application may be made by petition to any court having
       jurisdiction for an order directed to any party or parties whose rights have been determined
       by the declaration to show cause why the further relief should not be granted forthwith.” 735
       ILCS 5/2-701(c) (West 2010). When read together, these provisions indicate that
       consequential or incidental relief which is “based on the rights previously determined in the
       initial declaration, may be claimed and obtained following the entry of a final and appealable
       declaratory [judgment].” Universal Underwriters Insurance Co. v. Judges & James, Ltd., 372
       Ill. App. 3d 372, 381, 865 N.E.2d 531, 541 (2007). “However, a motion requesting such
       relief is not a posttrial motion within the meaning of Rule 303(a)(1) because it is not directed
       against the original judgment, but is incidental to that judgment.” Id. Thus, although section
       2-701 allows a circuit court to retain jurisdiction to entertain a request for further relief after
       the initial declaration without any time limitation, such retention of jurisdiction neither
       delays nor postpones the finality of issues originally decided so as to render the original
       decision nonfinal and nonappealable. Id.
¶ 24       We find that Hartford’s motion for monetary judgment was not a motion directed against
       the November 8, 2010 judgment so as to constitute a postjudgment motion under Rule
       303(a), nor was it a motion for modification or vacatur of the judgment pursuant to section
       2-1203 of the Code. See Ill. S. Ct. R. 303(a) (eff. May 30, 2008); 735 ILCS 5/2-1203 (West
       2010). Rather, the motion for monetary judgment was in effect a motion filed to enforce the
       November 8, 2010 ruling declaring that Indiana Insurance must reimburse Hartford for the
       amount it paid to defend Powerscreen in the underlying lawsuit. As a result, we find that
       Hartford’s motion for monetary judgment was incidental or collateral to the principal


                                                  -6-
       declaratory judgment actions and did not affect the finality or appealability of the November
       8, 2010 judgment. See Hartford Fire Insurance Co. v. Whitehall Convalescent & Nursing
       Home, Inc., 321 Ill. App. 3d 879, 885-87, 748 N.E.2d 674, 679-81 (2001) (motion for
       reimbursement of defense costs filed after the circuit court’s ruling on the declaratory
       judgment action was not made part of the principal action and thus did not affect the finality
       or appealability of the principal action); accord Physicians Insurance Exchange v. Jennings,
       316 Ill. App. 3d 443, 452, 736 N.E.2d 179, 186-87 (2000) (finding that a motion to tax
       deposition costs filed after the circuit court’s declaratory judgment order did not directly
       challenge the declaratory judgment, had no bearing on the effect of the declaratory judgment,
       and did not deprive the circuit court of jurisdiction to hear the motion to tax deposition
       costs). We further find that the circuit court in the instant case erred in “denying” the motion
       to reconsider its decision to deny Hartford’s motion for monetary judgment on the basis that
       it lacked jurisdiction pursuant to Rule 303(a)(2), where, as discussed, Hartford’s motion for
       monetary judgment neither delayed nor postponed the finality of the issues decided in the
       November 8, 2010 order, but allowed the circuit court to retain jurisdiction to make rulings
       upon the incidental or collateral relief requested in the motion for monetary judgment and
       the subsequent motion to reconsider. Nonetheless, despite the circuit court’s error, we find
       that Powerscreen and Hartford’s timely filed June 22, 2011 notice of cross-appeal properly
       conferred jurisdiction upon this court over the issue of Hartford’s motion for monetary
       judgment. Accordingly, we have proper jurisdiction over all matters of this consolidated
       appeal.
¶ 25       Turning to the merits of the case, we determine whether the circuit court erred in granting
       summary judgment in favor of Powerscreen and Hartford, when it ruled that Powerscreen
       was an additional insured under Indiana Insurance’s policy and that Indiana Insurance must
       reimburse Hartford for the sums it paid to defend Powerscreen in the underlying lawsuit.
¶ 26        Summary judgment is appropriate where “the pleadings, depositions, and admissions on
       file, together with the affidavits, if any, show that there is no genuine issue as to any material
       fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-
       1005(c) (West 2010). “The interpretation of an insurance policy and the coverage provided
       are questions of law that are appropriate for resolution through summary judgment.”
       American Service Insurance Co. v. Jones, 401 Ill. App. 3d 514, 520, 927 N.E.2d 840, 845-46
       (2010). We review the circuit court’s summary judgment ruling under a de novo standard of
       review. Id., 927 N.E.2d at 845. We also review the construction of the provisions of the
       Indiana Insurance policy de novo. See Pekin Insurance Co. v. Wilson, 391 Ill. App. 3d 505,
       509, 909 N.E.2d 379, 385 (2009).
¶ 27       An insurer’s duty to defend is much broader than its duty to indemnify its insured. Crum
       & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 393, 620 N.E.2d 1073,
       1079 (1993). The primary function of the court when construing an insurance policy is to
       ascertain and enforce the intentions of the parties as expressed in the agreement. Id. at 391,
       620 N.E.2d at 1078. In determining whether an insurer has a duty to defend, a reviewing
       court must compare the allegations of the underlying complaint to the relevant terms of the
       insurance policy at issue. Clarendon America Insurance Co. v. B.G.K. Security Services, Inc.,

                                                  -7-
       387 Ill. App. 3d 697, 702-03, 900 N.E.2d 385, 391 (2008). If the underlying complaint
       alleges facts within or potentially within the policy’s coverage, the insurer’s duty to defend
       arises even if the allegations are groundless, false or fraudulent. Id., 900 N.E.2d at 391-92.
       Further, an insurer’s duty to defend arises even when only one of several theories of recovery
       alleged in the underlying complaint is within the potential coverage of the policy. Id., 900
       N.E.2d at 392. Courts should liberally construe insurance policies in favor of coverage, and
       where an ambiguity exists in the insurance contract, it should be resolved in favor of the
       insured and against the insurer. Id.
¶ 28       In the present case, the relevant terms of the Indiana Insurance policy define an
       “additional insured” as any person or organization which the named insured of the policy has
       agreed in writing to be added as an additional insured, and as any person or organization
       whose liability arose out of the named insured’s “ongoing operations performed for that
       person or organization.” The Indiana Insurance policy further states that a person or
       organization’s status as an additional insured ends at the completion of the named insured’s
       operations for the person or organization. It is undisputed and, thus, no genuine issue of
       material fact exists, that Terrell Materials was a named insured on the Indiana Insurance
       policy and that it agreed in writing, pursuant to the rental agreement, to name Powerscreen
       as an additional insured on the Indiana Insurance policy. It is also undisputed that the rental
       agreement was in effect at the time of John’s injury. Thus, our relevant inquiry centers on
       whether the liability at issue arose out of Terrell Materials’ “ongoing operations performed”
       for Powerscreen.
¶ 29       The allegations of the underlying complaint alleged that Terrell Materials had been
       retained to perform reconstruction work of Interstate-294 near the Willow Road overpass
       prior to July 16, 2008; that it had leased the concrete crusher at issue from Powerscreen; that
       the concrete crusher had “wings” on each side of the equipment which could be raised
       hydraulically; that the end hydraulic wing was not functional prior to the date of John’s
       injury; that Terrell Materials had damaged the hydraulics of the concrete crusher; that Terrell
       Materials had put a pin in place to keep the end hydraulic wing in an upright position; that
       Terrell Materials had a duty to exercise reasonable care to “keep, maintain, and operate the
       subject concrete crusher” but that it had failed to fix the hydraulics; that general contractor
       Walsh Construction Company (Walsh Construction) retained the services of Noel
       Construction to move the concrete crusher from one location to another; that John, as an
       employee of Noel Construction, was required to relocate the concrete crusher so that Terrell
       Materials could continue using it; and that John was severely injured when the hydraulic
       wings collapsed on him. The underlying complaint further alleged that Powerscreen offered
       repair services for its leased equipment; that Powerscreen had become aware prior to the
       accident that the end hydraulic wing of the concrete crusher was not functional; that
       Powerscreen nonetheless advised Terrell Materials employees that it was safe to operate the
       concrete crusher as long as a pin was put into place; and that Powerscreen failed to repair the
       concrete crusher or take the equipment out of service.
¶ 30      Illinois courts have held that the phrase “arising out of” is “ ‘both broad and vague, and
       must be liberally construed in favor of the insured; accordingly, “but for” causation, not

                                                 -8-
       necessarily proximate causation, satisfies this language.’ ” American Economy Insurance Co.
       v. Holabird & Root, 382 Ill. App. 3d 1017, 1023, 886 N.E.2d 1166, 1172 (2008) (quoting
       Maryland Casualty Co. v. Chicago & North Western Transportation Co., 126 Ill. App. 3d
       150, 154, 466 N.E.2d 1091, 1094 (1984)). “Arising out of” has also been interpreted by
       courts to mean “originating from,” “having its origin in,” “growing out [of]” and “flowing
       from.” (Internal quotation marks omitted.) Holabird & Root, 382 Ill. App. 3d at 1023, 886
       N.E.2d at 1172. Therefore, we must determine whether liability at issue incurred “but for”
       the ongoing operations performed for Powerscreen by Terrell Materials.
¶ 31       Indiana Insurance argues that Terrell Materials was not performing any “ongoing
       operations” for Powerscreen at the time of John’s injury because Terrell Materials had
       merely leased the concrete crusher from Powerscreen and was not performing any practical
       work on Powerscreen’s behalf. Further, they argue, Terrell Materials was only performing
       construction work as a subcontractor of Walsh Construction, and that Walsh Construction
       made the decision to hire Noel Construction to move the concrete crusher. Indiana Insurance
       further contends that Terrell Materials’ obligations to repair and maintain the concrete
       crusher under the rental agreement did not constitute “ongoing operations” performed for
       Powerscreen.
¶ 32       Powerscreen and Hartford counter that but for Terrell Materials’ use, maintenance and
       failure to repair the concrete crusher under the rental agreement, John’s injury would not
       have occurred. They further contend that John’s alleged injuries at least potentially arose out
       of Terrell Materials’ ongoing operations for Powerscreen because it had a duty to repair and
       maintain the concrete crusher under the rental agreement, and cite Cincinnati Insurance Co.
       v. Dawes Rigging & Crane Rental, Inc., 321 F. Supp. 2d 975 (C.D. Ill. 2004), for support.
       We find Powerscreen and Hartford’s argument persuasive. Cincinnati Insurance Co., a case
       with facts similar to the case at bar, is particularly persuasive in analyzing this issue.
¶ 33       In Cincinnati Insurance Co., Dawes Rigging and Crane Rental (Dawes) leased a crane
       to Kelly Construction (Kelly) for use at a manufacturing plant. Id. at 978. Subsequently, a
       Dawes mechanic determined that the crane needed a new hydraulic holding valve that
       supported the boom of the crane. Id. The underlying complaint of the injured Kelly
       employee, Steve Toedt (Steve), alleged that he was required to and was assisting in the
       maintenance of the crane under the supervision of Dawes employees when the boom fell on
       him and he sustained permanent injuries. Id. Under the equipment lease agreement, Kelly,
       as the lessee, was required to name lessor Dawes as an additional insured under Kelly’s
       insurance policy with its insurer, Cincinnati Insurance Company (CIC). Id. The insurance
       policy specified that an “additional insured” was a person or organization “ ‘shown in the
       [s]chedule but only with respect to liability arising out of [Kelly’s] ongoing operations
       performed for that insured.’ ” Id. at 979. Dawes then tendered its defense of the underlying
       lawsuit to CIC, claiming that it was an additional insured on Kelly’s general liability
       insurance policy. Id. CIC denied tender of the defense and filed a declaratory judgment action
       against Dawes, and the parties filed cross-motions for summary judgment. Id. In granting
       summary judgment in favor of Dawes, the court found that Kelly’s requirement to assist
       Dawes in repair and maintenance work satisfied the “ongoing operations” language under

                                                 -9-
       the policy’s terms. Id. at 982. Further, the court liberally construed the phrase “arising out
       of” as contained in the policy and relied on the plain language of the allegations in the
       underlying complaint. The court found that its analysis resolved all doubts in favor of Dawes
       and found that the underlying complaint’s factual allegations fell within the parameters of
       the policy’s coverage. Id.
¶ 34        Using the analytical tenets of Cincinnati Insurance Co. in comparing the allegations in
       the underlying complaint at issue in this case with the relevant terms of the Indiana Insurance
       policy, we hold that Powerscreen is an additional insured under the policy. As an additional
       insured, Indiana Insurance has a duty to defend. The allegations of the underlying complaint
       specified that Terrell Materials had a duty to exercise reasonable care to “keep, maintain, and
       operate the subject concrete crusher,” that it had damaged the hydraulics of the equipment,
       that it had failed to repair the hydraulics of the concrete crusher, and that John sustained
       severe injuries when the hydraulic wings of the concrete crusher collapsed on him. Under the
       terms of the rental agreement, Terrell Materials was required, at its own costs, to “operate
       and maintain the equipment with factory authorized parts and to make any repairs which may
       become necessary.” This requirement is much like lessee Kelly’s requirement in Cincinnati
       Insurance Co., where Kelly was required to assist lessor Dawes in repairs and maintenance
       for the leased crane. This conclusion is further supported by the deposition testimony of
       Patrick Terrell, chief executive officer and president of Terrell Materials (CEO Terrell),
       which indicated that pursuant to the rental agreement, Terrell Materials was responsible for
       repair and maintenance of the concrete crusher, that it was responsible for returning the
       equipment to Powerscreen in the same condition as received, and that Powerscreen would
       make the repairs on the leased equipment if hired to do so by Terrell Materials. See Holabird
       & Root, 382 Ill. App. 3d at 1031, 886 N.E.2d at 1178 (in determining a duty to defend, courts
       may look to evidence beyond the underlying complaint so long as the court does not
       determine an issue critical to the underlying action); Clarendon America Insurance Co., 387
       Ill. App. 3d at 704, 900 N.E.2d at 392-93 (same). Thus, we hold that the contractual
       obligation of Terrell Materials to perform necessary maintenance work satisfied the “ongoing
       operations” language under the policy’s terms, thereby triggering coverage.
¶ 35       We find unpersuasive Indiana Insurance’s attempts to distinguish the facts of Cincinnati
       Insurance Co. from the instant case. Although John was an employee of Noel Construction,
       rather than Terrell Materials, at the time of his injury, based on the plain language of the
       underlying complaint and liberal construction of the term “arising out of” contained in the
       insurance policy at issue, John’s injury would not have occurred but for the ongoing
       operations performed for Powerscreen by Terrell Materials. Specifically, Terrell Materials
       had a continued contractual obligation to maintain and repair the concrete crusher. Its alleged
       failure to do so places it within the parameters of the allegations in the underlying lawsuit.
       This is sufficient to trigger coverage.
¶ 36       Moreover, although CEO Terrell testified that Terrell Materials had hired Powerscreen
       to repair the concrete crusher prior to the date of John’s accident, this did not create a
       genuine issue of material fact as to Terrell Materials’ duty to repair and maintain the leased
       equipment under the rental agreement. Niall Horan (Horan), president of Powerscreen,

                                                -10-
       testified in his deposition that Terrell Materials was free to either perform the maintenance
       itself, subcontract the work to third-party service providers, or hire Powerscreen to make any
       necessary repairs in order to fulfill Terrell Materials’ obligation to return the concrete crusher
       to Powerscreen in the same condition as it was received. Further, there is no evidence in the
       record, and Indiana Insurance does not allege, that the terms of the rental agreement were not
       in effect or that Terrell Materials was no longer under a contractual duty to repair and
       maintain the concrete crusher at the time of John’s injury. Thus, regardless of the fact that
       Terrell Materials hired Powerscreen to fix the concrete crusher prior to the accident, Terrell
       Materials retained full possession and control of the concrete crusher and had a duty to repair
       and maintain the equipment under the rental agreement as an “ongoing operation” for
       Powerscreen. Therefore, Powerscreen was an additional insured under the Indiana Insurance
       policy and Indiana Insurance owed a duty to defend Powerscreen in the underlying lawsuit.
¶ 37       In so holding, we need not address Powerscreen and Hartford’s alternative argument that
       Indiana Insurance owed Powerscreen a duty to defend because it had admitted to indemnity
       coverage by paying sums under the policy on behalf of Powerscreen to settle the underlying
       lawsuit. However, because Indiana Insurance had a duty to defend Powerscreen in the
       underlying lawsuit, we must consider whether Indiana Insurance’s coverage was primary
       under its policy terms.
¶ 38       Powerscreen and Hartford argue that Indiana Insurance had the sole and primary
       obligation to defend Powerscreen in the underlying lawsuit and that Hartford had no such
       obligation to defend under the terms of both insurers’ policies. Indiana Insurance makes no
       meaningful response to this argument, stating only that the scope of its coverage need not be
       considered by this court because it had no duty to defend Powerscreen. We reject this
       argument, since we conclude that Indiana Insurance had the sole and primary obligation to
       defend Powerscreen in the underlying lawsuit.
¶ 39       The plain language of the “other insurance” clause in the insurance policy issued by
       Hartford to Powerscreen as a named insured specified that Hartford would only provide
       excess coverage to Powerscreen where Powerscreen has been added as an additional insured
       to another insurer’s policy. Further, the Indiana Insurance policy stated that Indiana Insurance
       would provide primary coverage except in certain enumerated circumstances which are not
       applicable to the instant case. Thus, in construing both insurance policies, Indiana Insurance
       had the sole and primary obligation to defend Powerscreen as an additional insured under its
       policy coverage in the underlying lawsuit. Accordingly, we hold that the circuit court
       properly ruled that Indiana Insurance must reimburse Hartford for the sums it paid to defend
       Powerscreen in the underlying lawsuit and the court appropriately granted summary
       judgment in favor of Powerscreen and Hartford.
¶ 40       As discussed, Hartford’s motion for monetary judgment was incidental or collateral to
       the principal declaratory judgment actions, and the circuit court erred in “denying” the
       motion to reconsider its decision to deny the motion for monetary judgment without
       prejudice on the basis that it lacked jurisdiction pursuant to Rule 303(a)(2). On appeal,
       Hartford makes a number of arguments urging this court to determine the exact dollar


                                                 -11-
       amount of reimbursement from Indiana Insurance to which it was entitled, including the
       determination of defense costs, pre-judgment interest, post-judgment interest, and other
       associated court costs. We decline Hartford’s invitation to make those factual findings. The
       circuit court is the appropriate forum to make those determinations. Therefore, we remand
       this case to the circuit court for resolution of the reimbursement issue, including conducting
       an evidentiary hearing as may be necessary to determine the “sums [Hartford] paid to defend
       Powerscreen in the [underlying lawsuit], with costs.”
¶ 41       For the foregoing reasons, we affirm the November 8, 2010 judgment of the circuit court
       of Cook County granting summary judgment in favor of Powerscreen and Hartford. We
       remand the matter to the circuit court solely for the determination of the amount of money
       including costs, to which Hartford is entitled, as reimbursement for its defense of
       Powerscreen in the underlying lawsuit.


¶ 42      Affirmed and remanded with directions.




                                               -12-
