                                Illinois Official Reports

                                        Appellate Court



          Certain Underwriters at Lloyd’s, London v. Central Mutual Insurance Co.,
                                  2014 IL App (1st) 133145




Appellate Court           CERTAIN UNDERWRITERS AT LLOYD’S, LONDON,
Caption                   Subscribing to Certificate No. CRCC001448, Plaintiff-Appellant, v.
                          CENTRAL MUTUAL INSURANCE COMPANY, Defendant-
                          Appellee (Golden Nail Builders, Inc., Erik Electric Service, Inc., and
                          Pawel Bowal, Defendants).

District & No.            First District, Fifth Division
                          Docket No. 1-13-3145


Filed                     May 23, 2014


Held                       In an action arising from a dispute over the insurance coverage for the
(Note: This syllabus injuries suffered by an employee of a sub-subcontractor at a home
constitutes no part of the construction site where the general contractor was the named insured
opinion of the court but under a commercial general liability policy issued by plaintiff and the
has been prepared by the electrical subcontractor had a policy issued by defendant that named
Reporter of Decisions the general contractor as an additional insurer but did not specify
for the convenience of whether the additional coverage was primary or excess, and after
the reader.)               defendant rejected plaintiff’s tender of its defense, plaintiff filed the
                           instant declaratory judgment action, the trial court did not err in
                           concluding that defendant’s policy provided only excess coverage and
                           defendant did not breach any duty to defend, since the underlying
                           claim did not fall within the scope of the coverage provided by
                           defendant’s policy, especially when defendant’s policy provided that
                           it was an excess insurer unless there was a contract requiring it to be
                           the primary insurer, and in the absence of such a contract provision in
                           the subcontractor agreement, the additional insurance provided by
                           defendant defaulted to being excess pursuant to River Village;
                           furthermore, defendant did not have to file a separate declaratory
                           judgment action, because its answer to plaintiff’s declaratory
                           judgment action constituted a timely attempt to obtain a declaratory
                           judgment in defendant’s favor.
     Decision Under           Appeal from the Circuit Court of Cook County, No. 12-CH-19785; the
     Review                   Hon. David B. Atkins, Judge, presiding.


     Judgment                 Affirmed.


     Counsel on               Neal R. Novak and Colleen M. Costello, both of Novak Law Offices,
     Appeal                   of Chicago, for appellant.

                              Craig L. Unrath and Natalie D. Thompson, both of Heyl, Royster,
                              Voelker & Allen, of Peoria, and Brent A. Swanson and Andrew J.
                              Roth, both of Heyl, Royster, Voelker & Allen, of Rockford, for
                              appellee.




     Panel                    JUSTICE McBRIDE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Gordon and Justice Palmer concurred in the
                              judgment and opinion.




                                               OPINION

¶1         General contractor Golden Nail Builders, Inc. (Builders), was the named insured on a
       commercial general liability insurance policy it obtained from Certain Underwriters at
       Lloyd’s, London (Underwriters) and an additional insured on a commercial general liability
       insurance policy that subcontractor Erik Electric Service, Inc. (Erik Electric), obtained from
       Central Mutual Insurance Company (CMIC). When an employee of a sub-subcontractor was
       injured on a home construction site, the two insurers disagreed as to which was the primary
       insurer and which was the excess insurer. The disagreement arose because although Erik
       Electric was contractually required to maintain insurance coverage for Builders as an
       additional insured, the subcontractor agreement did not specify that the additional coverage
       be primary or excess. Underwriters filed this declaratory judgment action seeking a
       declaration that it was the excess insurer. However, on cross-motions for summary judgment,
       CMIC persuasively argued that the circumstances were nearly identical to those in River
       Village I, LLC v. Central Insurance Cos., 396 Ill. App. 3d 480, 483, 919 N.E.2d 426, 428
       (2009), in which the court determined the additional coverage at issue there was excess
       because (a) the agreement between the general contractor and subcontractor was silent as to
       whether the additional coverage obtained for the general contractor was to be primary or
       excess and (b) the “other insurance” clause in the subcontractor’s insurance policy stated that
       coverage would be excess “ ‘unless a contract requires that this insurance be *** primary.’ ”

                                                  -2-
     Underwriters appeals, urging us to find that the controlling case is Ohio Casualty Insurance
     Co. v. Oak Builders, Inc., 373 Ill. App. 3d 997, 869 N.E.2d 992 (2007), in which the court
     found that two insurers were coprimary rather than primary and excess. Underwriters also
     contends CMIC is estopped from asserting policy defenses because it neither filed its own
     declaratory judgment action nor assumed Builders’ legal defense, and that Underwriters is
     entitled to reimbursement of the funds it has expended on defending Builders.
¶2       Builders and Erik Electric are Chicago companies that entered into a subcontractor
     agreement on May 19, 2008. The agreement provided for subcontractor Erik Electric to
     “maintain coverage” for the duration of its project with contractor Builders, that the coverage
     limits of the liability insurance would be no less than $1 million, and that Builders “will be
     included as [an] Additional Insured.” As we just noted above, the subcontractor agreement
     did not specify whether the additional insured coverage provided to Builders needed to be
     primary or excess insurance. Primary insurance coverage is coverage whereby, under the
     terms of the policy, liability attaches immediately upon the happening of an event that gives
     rise to liability. Whitehead v. Fleet Towing Co., 110 Ill. App. 3d 759, 764, 442 N.E.2d 1362,
     1366 (1982). A primary insurer provides “ ‘first dollar’ ” coverage up to the limits of its
     policy. Scott M. Seaman & Charlene Kittredge, Excess Liability Insurance: Law and
     Litigation, 32 Tort & Ins. L.J. 653, 655 (1997). In contrast with primary insurance, excess
     insurance coverage is a secondary layer which protects an insured when a judgment or
     settlement exceeds the primary policy’s limits of liability. Id. at 656. A secondary insurer
     covers the same risks as the primary insurer (id. at 657), but under the terms of an excess
     policy, the secondary insurer’s “liability attaches only after a predetermined amount of
     primary coverage has been exhausted” (Federal Insurance Co. v. Economy Fire & Casualty
     Co., 189 Ill. App. 3d 732, 738, 545 N.E.2d 2d 541, 545 (1989); 1 Eric Mills Holmes & Mark
     S. Rhodes, Holmes’s Appleman on Insurance 2d § 2.16, at 323 (1996)). Put another way, an
     excess policy does not broaden the underlying coverage, it increases the amount of coverage
     available to compensate for a loss. Excess insurance premiums are typically less expensive
     than primary insurance premiums because excess insurers experience less frequent claims
     and incur lower costs than primary insurers. See Kajima Construction Services, Inc. v. St.
     Paul Fire & Marine Insurance Co., 227 Ill. 2d 102, 116, 879 N.E.2d 305, 314 (2007);
     Michael M. Marick, Excess Insurance: An Overview of General Principles and Current
     Issues, 24 Tort & Ins. L.J. 715, 718 (1989).
¶3       Erik Electric obtained a certificate of liability insurance from CMIC dated May 20, 2008,
     which stated on its face, “[Builders] is named as an additional insured as respects General
     Liability, as required by written contract.” The certificate also stated that it was “issued as a
     matter of information only and confers no rights upon the certificate holder” and “does not
     amend, extend or alter the coverage afforded by the policies below.”
¶4       Builders and Casagrande Architects were sued by electrician Pawel Bawol on August 18,
     2010, and in a first amended complaint Bawol added Erik Electric as a defendant. Bawol
     alleged that he was severely injured due to the defendants’ negligence on or about November
     26, 2008, while he was in the employ of an electrical sub-subcontractor and assisting
     Builders with the construction of a single-family home at 1920 North Hudson Avenue,
     Chicago. Bawol alleged he was hurt when he fell from a ramp made of piled masonry debris
     that tradesmen were to use when entering or leaving through the front door of the house
     under construction.


                                                 -3-
¶5       Builders tendered its defense of Bawol’s suit to Underwriters on September 13, 2010, and
     Underwriters accepted the defense subject to a reservation of rights. Builders’ defense
     attorney then tendered Builders’ defense to CMIC on May 18, 2011. On October 27, 2011,
     however, CMIC’s claims adjustor responded to counsel, “I do not see where our insurance
     coverage is triggered in this situation. Why do you feel your [client, Builders,] would qualify
     as an additional insured under our policy?” After getting no response, the claims adjustor
     sent a similar letter on December 5, 2011, to the defense attorney, stating, “I have not heard
     from you regarding my letter to you of 10/27/11. For your convenience I have included a
     copy of that letter. I look forward to hearing from you in the future.” After still not receiving
     a response, CMIC sent another letter on January 13, 2012, but this time advising that the lack
     of response led CMIC to conclude that the tender of defense was being withdrawn and, if this
     was not correct, to contact CMIC. Builders still did not respond to CMIC, and on February
     28, 2012, CMIC again wrote to Builders, this time stating that it considered the “silence on
     this matter” to be a withdrawal of the tender of defense and also that CMIC was declining
     coverage based on CMIC’s policy language. On April 13, 2012, Underwriters contacted
     CMIC for the first time and said that Builders did not intend to withdraw its tender and that it
     would write again after taking the time to research the coverage issues. On April 19, 2012,
     Underwriters sent a detailed letter in which it “re-tender[ed]” Builders’ defense and
     explained why it considered CMIC to be the primary insurer and liable for indemnifying
     Underwriters for opposing the Bawol suit. On May 10, 2012, CMIC declined the “re-tender.”
¶6       Underwriters then initiated this declaratory judgment action, CMIC filed an answer
     which included affirmative defenses, and the parties filed cross-motions for summary
     judgment. After briefing and oral arguments, the circuit court granted in part Underwriter’s
     motion for summary judgment, based on the court’s finding that CMIC owed additional
     insured coverage to Builders. The court also, however, granted in part CMIC’s motion for
     summary judgment, based on the court’s findings that the CMIC coverage was excess only
     based on the plain language of the policies and that CMIC was not estopped from asserting
     policy defenses due to the fact that the excess insurer had no duty to defend Builders and had
     timely rejected the tender and “re-tender” and defended against Underwriters’ declaratory
     judgment action. This appeal followed.
¶7       The construction of an insurance policy and the determination of contractual rights are
     questions of law that are appropriately addressed through the summary judgment process.
     Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 755, 835 N.E.2d 890, 896
     (2005). While the entry of summary judgment is considered a “drastic measure,” it is a
     proper and expeditious means of disposing of a lawsuit when the moving party’s right to
     judgment is “clear and free from doubt” and the moving party is entitled to judgment as a
     matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102,
     607 N.E.2d 1204, 1209 (1992); 735 ILCS 5/2-1005(c) (West 2008) (the Code of Civil
     Procedure provides for the entry of summary judgment only where the record shows “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”). We review de novo the trial judge’s entry of summary
     judgment. Outboard Marine, 154 Ill. 2d at 102, 607 N.E.2d at 1209.
¶8       If the words used in an insurance contract, when given their plain and ordinary meaning,
     are unambiguous, then we apply the terms of the policy as written. CMK Development Corp.
     v. West Bend Mutual Insurance Co., 395 Ill. App. 3d 830, 837-38, 917 N.E.2d 1155, 1162


                                                 -4-
       (2009). When construing insurance contracts, our goal is to ascertain and give effect to the
       contracting parties’ intentions as expressed in the agreement or agreements they signed. CMK
       Development, 395 Ill. App. 3d at 837-38, 917 N.E.2d at 1162.
¶9         “Other insurance” clauses came about in response to the targeted tender doctrine. River
       Village, 396 Ill. App. 3d at 487, 919 N.E.2d at 431.
               “The targeted tender doctrine allows an insured who is covered by multiple and
               concurrent [primary] insurance policies to select, or ‘target,’ which insurer he wants
               to defend and indemnify him regarding a specific claim. [Citation.] The insured
               essentially can choose which insurer among his several co-insurers will participate in
               the claim against him; he can elect one insurer over another, or, even deactivate
               coverage with an insurer he previously selected in order to invoke exclusive coverage
               with another. [Citations.] This allows an insured who has paid for multiple [forms of]
               coverage to protect his interests, namely, keeping future premiums low, optimizing
               loss history and preventing policy cancellation among the insurers he chooses.
               [Citation.]
                   In an effort to override this right of the insured to choose among co-insurers,
               insurers developed ‘other insurance’ excess provisions in their policies. These
               provisions attempt to render otherwise primary insurance as excess over any other
               collectible insurance, most often with statements in the policy that declare the
               insurer’s coverage to be excess over any other valid and collectible insurance
               available to the insured. [Citation.] In such instances, the ‘other insurance’ excess
               provision requires the insured to exhaust the policy limits of the other co-insurers
               before being able to trigger a defense and indemnification duty in that insurer.
               [Citation.]” River Village, 396 Ill. App. 3d at 486-87, 919 N.E.2d at 431.
¶ 10       The contract between Underwriters and Builders indicates the insurance coverage is
       primary unless there is other primary insurance available to Builders. Section IV of the
       Underwriters contract, which is entitled “Commercial General Liability Conditions,” states in
       pertinent part:
               “4. Other Insurance
                       If other valid and collectible insurance is available to the insured for a loss ***
                   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, or the products and completed operations,
                   for which you have been added as an additional insured by attachment of an
                   endorsement.”
¶ 11       The CMIC policy also includes an “other insurance” clause. According to the “General
       Liability Plus Endorsement” to the CMIC policy:
                   “[The CMIC coverage to an additional insured] is excess over:



                                                    -5-
                   Any other valid and collectible insurance available to the additional insured
               whether primary, excess, contingent or on any other basis unless a contract
               specifically requires that this insurance be either primary or primary and
               noncontributing. Where required by contract, we will consider any other insurance
               maintained by the additional insured for injury or damage covered by this
               endorsement to be excess and noncontributing with the insurance.”
       This CMIC policy language is reiterated in an amendment, which states:
                   “Any coverage provided hereunder shall be excess over any other valid and
               collectible insurance available to the additional insured whether primary, excess,
               contingent or on any other basis unless a contract specifically requires that this
               insurance be either primary or primary and noncontributing. Where required by
               contract, we will consider any other insurance maintained by the additional insured
               for injury or damage covered by this endorsement to be excess and noncontributing
               with the insurance.”
¶ 12       Summarizing these clauses: (1) the Underwriters’ policy plainly states that Underwriters
       is the primary insurer, but if other primary insurance is available, then the Underwriters
       coverage will become excess, and (2) the CMIC policy plainly states that CMIC is the excess
       insurer unless a condition precedent is met: there is a contract requiring CMIC to be the
       primary insurer. Accordingly, we next look to whether CMIC is “required by contract” to be
       primary. The subcontractor agreement between Builders and Erik Electric is undisputedly
       silent as to whether the coverage provided to Builders as an additional insured will be
       primary or excess insurance. Also, the CMIC certificate of liability insurance that identified
       Builders as an additional insured gives no indication as to whether that coverage is primary
       or excess.
¶ 13       In River Village, the court considered the same two clauses we have quoted above and the
       same circumstances, that is, where a subcontractor was contractually required to obtain
       additional insured coverage for a general contractor but the parties’ contract did not spell out
       whether that coverage had to be primary or excess. River Village, 396 Ill. App. 3d at 482, 919
       N.E.2d at 428. In that case, the court concluded that the condition precedent language that
       appears in the CMIC policy, namely, there must be a contract dictating that the additional
       insurance will be primary, did not exist and that the additional coverage defaulted to being
       excess only. River Village, 396 Ill. App. 3d at 491, 919 N.E.2d at 435.
¶ 14       Consistent with this opinion, we conclude that the clear and unambiguous condition
       precedent language in the CMIC policy was not satisfied and that the CMIC policy provides
       only excess coverage to Builders for the Bawol lawsuit. We also find it clear and
       unambiguous that Underwriters agreed to provide primary coverage in all instances except
       where it is shown that other primary coverage is available and that because there is no other
       primary insurance available, Underwriters is the primary insurer to Builders.
¶ 15       Underwriters argues River Village is distinguishable because that primary insurer did not
       provide its insurance policy for the court’s review. This does not, however, change the fact
       that the River Village court analyzed the same policy language at issue here (the “other
       insurance” clause in the subcontractor’s policy) and held that because the subcontractor
       agreement did not specifically require that the CMIC coverage be primary, that the condition
       precedent to primary coverage was not met. River Village, 396 Ill. App. 3d at 491, 919
       N.E.2d at 435.

                                                  -6-
¶ 16        Underwriters argues that Oak Builders, 373 Ill. App. 3d 997, 869 N.E.2d 992, is
       dispositive of the main issue in this case because the two policies there contain the same
       “other insurance” clauses that are in the CMIC and Underwriters policies and, as a
       consequence, the trial court should have concluded that the CMIC and Underwriters policies
       are incompatible and therefore cancel each other out, rendering the insurers coprimary. We
       disagree with this conclusion. In Oak Builders, the court quoted but did not analyze the
       condition precedent language, operated from the presumption that the general contractor’s
       insurer was a primary insurer, and then analyzed whether the other insurer was a coprimary
       or excess insurer. Oak Builders, 373 Ill. App. 3d 997, 869 N.E.2d 992. Here, the condition
       precedent language in the CMIC policy is pivotal in determining which of the two insurers is
       primary and which is excess, we have no grounds for presuming that either insurer is
       primary, and nothing in the subcontractor agreement or either insurance policy suggests that
       a coprimary arrangement is the appropriate conclusion to draw in this instance.
¶ 17        The Oak Builders court found that because both policies contained “other insurance”
       clauses that converted otherwise primary coverage into excess coverage whenever primary
       coverage was available, the clauses were irreconcilable and that the insurers should share the
       cost of defending and indemnifying the underlying tort suit. Oak Builders, 373 Ill. App. 3d at
       1004, 869 N.E.2d at 997. One reason the court determined the “other insurance” clauses were
       irreconcilable was that the facts of that case led to a different result depending upon which
       policy was read first. Oak Builders, 373 Ill. App. 3d at 1003, 869 N.E.2d at 996-97. The
       majority rule for resolving “other insurance” disputes is that these provisions should be
       reconciled whenever possible in order to effectuate the intent of the parties, but that the court
       cannot arbitrarily pick one policy to be read first and undermine the intention of the insurer
       whose policy is read second. Oak Builders, 373 Ill. App. 3d at 1001, 869 N.E.2d at 995
       (citing Putnam v. New Amsterdam Casualty Co., 48 Ill. 2d 71, 78-79, 269 N.E.2d 97, 100-01
       (1970) (deeming identical “other insurance” clauses to be incompatible is fair when there is
       no rational basis for applying the clause of one policy and refusing to apply the clause of the
       other policy)). It is unclear from the Oak Builders opinion why the court presumed the
       general contractor’s insurer was primary coverage and that the issue before the court was
       whether the subcontractor’s additional insured endorsement rendered it coprimary coverage
       or excess coverage. Oak Builders, 373 Ill. App. 3d 997, 869 N.E.2d 992. But here, the two
       “other insurance” provisions can be easily reconciled regardless of which policy is read first.
       Above, we set out the terms of the plaintiff’s policy (Underwriters) before setting out the
       defendant’s policy (CMIC), but the order makes no difference and does not change the
       contracting parties’ words and apparent intent. The two policies are compatible primary and
       excess policies. It would be arbitrary and unfair to disregard the condition precedent in the
       CMIC contract, follow Oak Builders, and conclude that the two insurers are coprimary. Oak
       Builders, 373 Ill. App. 3d 997, 869 N.E.2d 992. We find the reasoning in River Village to be
       thorough, persuasive, and on point, and we choose to follow that precedent.
¶ 18        For these reasons, we reject appellant Underwriters’ main appellate contention that the
       trial court erred in following River Village instead of Oak Builders and erred in concluding
       that the subcontractor’s insurer, CMIC, provided excess coverage only.
¶ 19        Our next consideration is whether CMIC is estopped from asserting any policy defenses
       to coverage because it neither defended Builders in the Bawol tort suit under a reservation of
       rights nor timely filed a declaratory judgment action for an adjudication of its obligations to


                                                   -7-
       Builders. Underwriters argues that CMIC was “sitting on the sidelines and doing nothing”
       while the underlying tort suit was underway.
¶ 20       The estoppel doctrine arose from the principle that an insurer’s duty to defend its insured
       “is so fundamental an obligation that a breach of that duty constitutes a repudiation of the
       [insurance] contract.” Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d
       127, 151, 708 N.E.2d 1122, 1135 (1999). An insurer’s duties under an insurance agreement
       are ordinarily triggered when the insured or someone acting on behalf of the insured tenders
       the defense of an action that is potentially within the scope of coverage. See, e.g., Alcan
       United, Inc. v. West Bend Mutual Insurance Co., 303 Ill. App. 3d 72, 75, 707 N.E.2d 687, 689
       (1999) (in which tenders were made by insurance broker and third-party claims adjustor).
       When an insurer determines that an underlying suit potentially implicating coverage is not
       covered under the policy that includes a duty to defend, the insurer may not simply refuse to
       defend the insured. Employers Insurance, 186 Ill. 2d at 150, 708 N.E.2d at 1134-35. Instead
       of “sitting on the sidelines” as Underwriters argues occurred here, the insurer must act on one
       of two options. The insurer must either defend the suit under a reservation of rights or seek a
       declaratory judgment that there is no coverage. Employers Insurance, 186 Ill. 2d at 150, 708
       N.E.2d at 1134-35. If the insurer fails to take one of these two steps “and is later found to
       have wrongfully denied coverage, [then] the insurer is estopped from raising policy defenses
       to coverage.” (Emphasis added.) Employers Insurance, 186 Ill. 2d at 150-51, 708 N.E.2d at
       1134-35. “An insurer cannot safely or justifiably refuse to defend an action against its
       insured unless it is clear from the face of the complaint that the claim is beyond the policy’s
       coverage.” Korte Construction Co. v. American States Insurance, 322 Ill. App. 3d 451, 457,
       750 N.E.2d 764, 769 (2001).
¶ 21       Consistent with these legal principles, we make two findings. First, the estoppel doctrine
       is not relevant here where the CMIC coverage was excess only and did not obligate CMIC to
       defend the Bawol suit. CMIC’s policy provided, “When this insurance is excess, we will
       have no duty to defend the insured against any ‘suit’ if any other insurer has a duty to defend
       the insured against that ‘suit.’ ” Thus, the principle that Underwriters is relying upon is not
       applicable to the facts of this case. CMIC did not breach a duty to defend and is not estopped
       from asserting policy defenses to coverage.
¶ 22       Our second finding is based on a record that indicates CMIC was not just “sitting on the
       sidelines and doing nothing” as the Bawol suit progressed. The record indicates that the
       Bawol defense was tendered to CMIC on May 18, 2011, and that CMIC responded with three
       letters, dated October 27, 2011, December 5, 2011, and January 13, 2012, in which it
       attempted to investigate the coverage question, but Builders’ attorney did not respond to the
       three inquiries. On February 28, 2012, CMIC sent a letter to Builders’ attorney stating that
       the lack of a response was being construed as a withdrawal of the defense tender to CMIC
       (and also that the claim did not come within the scope of CMIC coverage). After this, a third
       party employed by Underwriters reviewed the file and wrote to CMIC on April 13, 2012,
       stating that Builders did not intend for its silence to be construed as a withdrawal of the
       tender. Builders then changed attorneys and on April 19, 2012, Builders’ new lawyer
       “re-tender[ed]” the defense to CMIC. Very shortly afterward, on May 10, 2012, CMIC
       denied the “re-tender,” and very shortly after that, on May 20, 2012, Underwriter initiated the
       present coverage suit. Underwriters named CMIC as a party to this declaratory judgment
       action. CMIC filed an answer and affirmative defenses seeking a favorable declaratory


                                                  -8-
       judgment, and ultimately, the trial court granted summary judgment in favor of CMIC’s
       coverage position. Accordingly, our second finding is that CMIC timely sought a declaratory
       judgment regarding its contractual obligation to Builders when CMIC filed an answer and
       affirmative defenses seeking a declaration in CMIC’s favor. It was not necessary for CMIC
       to initiate a separate declaratory judgment action. Ayers v. Bituminous Insurance Co., 100 Ill.
       App. 3d 33, 35, 424 N.E.2d 1316, 1318 (1981) (indicating an insurer sought a favorable
       declaratory judgment by filing an answer to the insured’s declaratory judgment action and a
       third party complaint against the plaintiff in the personal injury action, and that by doing so
       the insurer had discharged its duty to pursue judicial declaration of its rights under the
       policy).When an insurer’s unreasonable delay, however, forces an insured to institute
       litigation to determine their rights and duties under the insurance contract, merely filing an
       answer will not stave off the estoppel doctrine. Korte Construction, 322 Ill. App. 3d at 458,
       750 N.E.2d at 767-68 (affirming application of the estoppel doctrine and the entry of
       statutory penalties for unreasonable and vexatious claim handling where an insured
       repeatedly asked the insured to provide a defense, but the insurer repeatedly refused,
       “abandoned its insured,” “did absolutely nothing,” and “wait[ed] for the insured to institute
       litigation”). Nonetheless, the estoppel doctrine is not meant to provoke “a race to the
       courthouse” and the insured should not be able to estop the insurer from asserting policy
       defenses merely because the insured was the first to the courthouse with a complaint for
       declaratory judgment. Korte Construction, 322 Ill. App. 3d at 458, 750 N.E.2d at 769-70
       (“[w]hile there need not be a race to the courthouse,” and the insured does not trigger
       estoppel merely by filing first, the insured must take action within a reasonable time of a
       demand by the insured). After reviewing the parties’ conduct in light of these principles, we
       find that even if CMIC had a duty to defend, CMIC did not breach that duty because CMIC
       timely sought a judicial declaration of its duties. Underwriters’ reliance on the estoppel
       doctrine is misplaced.
¶ 23        For the reasons discussed above, we reject Underwriters’ arguments for reversal. We
       conclude that CMIC was entitled to judgment as a matter of law that it is an excess insurer
       only and that it is not estopped from asserting policy defenses to coverage for Builders. The
       judgment of the circuit court is affirmed.

¶ 24      Affirmed.




                                                  -9-
