                                                                               THIRD DIVISION
                                                                                 August 25, 2010


No. 1-09-1708


PEKIN INSURANCE COMPANY,                             )      Appeal from the
                                                     )      Circuit Court of
       Plaintiff-Appellant,                          )      Cook County.
                                                     )
       v.                                            )
                                                     )
PULTE HOME CORPORATION, an Illinois                  )      Honorable
Corporation, JIM KUNDE CONSTRUCTION,                 )      LeRoy K. Martin, Jr.,
INC., an Illinois Corporation, and KENNETH J.        )      Judge Presiding.
KAISER,                                              )
                                                     )
       Defendants-Appellees.                         )



       JUSTICE QUINN delivered the opinion of the court:

       Defendant Kenneth Kaiser filed a lawsuit against defendants Pulte Home Corporation

(Pulte), a homebuilding company, and Jim Kunde Construction, Inc. (Kunde Construction),

Pulte’s sewer subcontractor alleging that he suffered severe and permanent injuries when he fell

into an unguarded sewer manhole in the backyard of a home under construction. Pulte tendered

its defense of Kaiser’s complaint to plaintiff Pekin Insurance Company (Pekin), which had issued

an insurance policy to Kunde Construction, naming Pulte as an additional insured. Pekin denied

the tender and filed this declaratory judgment action. Pekin and Pulte filed cross-motions for

summary judgment, and after a hearing, the trial court denied Pekin’s motion and granted Pulte’s

motion, finding that Pekin owned Pulte a defense in the underlying litigation. For the reasons set

forth below, we affirm the trial court.
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                                       I. BACKGROUND

       The facts giving rise to this litigation are not in dispute. Kenneth Kaiser, an employee of

Commonwealth Edison/Exelon, filed a two-count complaint in the circuit court of Cook County

on August 15, 2007, and a nearly identical first amended complaint on January 17, 2008, alleging

that he sustained severe and permanent injuries when he fell into an unguarded sewer manhole

while walking in the backyard of a home under construction in Carpentersville, Illinois. Kaiser

named several parties that were involved with the construction project as defendants, including

Pulte, the developer, and Kunde Construction, the sewer and water subcontractor. Count I of the

complaint raised a negligence claim and count II asserted a premises liability claim. In the

negligence count, Kaiser alleged that defendants “owned, controlled and/or were in charge of the

erection, construction, repairs, alteration, removal and/or painting” of the home and “individually

and through their agents, servants and employees, [were] present during the course of such

erection, construction, repairs, alteration, removal and/or painting,” “participated in coordinating

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

progress and participated in the scheduling of the work and the inspection of the work,” and “had

authority to stop the work, refuse the work and materials and order changes in the work.”

Further, Kaiser alleged that defendants, “by and through their agents, servants and employees,

were *** guilty of one or more of the following careless and negligent acts and/or omissions:”

               ?(a) Failed to make a reasonable inspection of the premises and the work being

       done thereon, when the Defendants knew, or in the exercise of ordinary care should have

       known, that said inspection was necessary to prevent injury to the Plaintiff.


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               (b) Improperly operated, managed, maintained and controlled the aforesaid

       premises, so that as a direct and proximate result thereof, the Plaintiff was injured.

               (c) Failed to provide the Plaintiff with a safe place within which to work.

               (d) Failed to warn the Plaintiff of the dangerous conditions then and there

       existing, when the Defendants knew, or in the exercise of ordinary care should have

       known, that said warning was necessary to prevent injury to the Plaintiff.

               (e) Failed to barricade or cover a drain/sewer opening in the ground.

               (f) Allowed men to work around an uncovered and unbarricaded drain/sewer

       opening in the ground.

               (g) Permitted a drain/sewer opening in the ground to be uncovered or

       unbarricaded.”

       Kaiser further alleged “[t]hat as a direct and proximate result of one or more of the

aforesaid careless and negligent acts and/or omissions of the Defendants,” he fell and suffered

severe and permanent injuries.

       Pulte filed an answer denying the allegations and raising affirmative defenses. Pulte also

filed a counterclaim against Kunde Construction for contribution. On March 13, 2009, in

response to Pulte’s request to admit, Kaiser admitted that his theories at trial included but were

not limited to all theories of vicarious liability permitted under section 414 of the Restatement

(Second) of Torts. Restatement (Second) of Torts § 414 (1965).

       Pulte tendered its defense in the Kaiser lawsuit to Pekin, which had issued an insurance

policy to Kunde Construction as the named insured, effective from August 9, 2006, to March 3,


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2007. Pulte was named as an additional insured on that policy pursuant to an endorsement that

reads, in relevant part, as follows:

               Who is an Insured (Section II) is amended to include as an insured any person

       or organization for whom you are performing operations when you and such person or

       organization have agreed in writing in a contract or agreement that such person or

       organization be added as an additional insured on your policy. Such person or

       organization is an additional insured only with respect to liability incurred solely as a

       result of some act or omission of the named insured and not for its own independent

       negligence or statutory violation. *** It is further understood that the designation of an

       entity as an additional insured does not increase or alter the scope of coverage of this

       policy.”

       Pekin denied the tender on the grounds that the additional insured endorsement does not

provide coverage for Pulte’s own acts or omissions or those in which Pulte played a role. On

January 18, 2008, Pekin filed this declaratory judgment action in the circuit court of Cook

County, seeking a determination that it is not liable under the policy to defend Pulte in the Kaiser

litigation. In its complaint, Pekin asserted that it had no duty to defend Pulte for one or more of

the following reasons: (a) the additional insured endorsement provides no coverage to Pulte for

its own negligence; (b) Kaiser sued Pulte based on the alleged negligence of Pulte toward Kaiser;

and (c) Kaiser was injured on a construction site where work was in progress, therefore, the

extension of coverage to Pulte under the endorsement for completed operations has no

application. Pekin and Pulte filed cross-motions for summary judgment. Following a hearing on


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June 17, 2009, the trial court denied Pekin’s motion and granted Pulte’s motion, finding that

Pekin had a duty to defend Pulte in the Kaiser litigation. This appeal followed.

                                           II. ANALYSIS

        On appeal, Pekin argues that the trial court erred in finding that it has a duty to defend

Pulte because the underlying complaint in the Kaiser litigation does not allege that Pulte is

“solely liable as a result of some act or omission of the named insured.” Pekin contends that

Pulte faces only direct liability for its own allegedly negligent acts and not vicarious liability for

the allegedly negligent acts of Kunde Construction. Therefore, Pekin argues, by the terms of the

additional insured endorsement and the prevailing construction of such endorsements, Pulte is

not an additional insured for the liability that Kaiser alleges against it, and therefore, Pekin had

no duty to defend it. Pulte contends, however, that because the underlying complaint asserts that

defendants “owned, controlled and/or were in charge of” the work site, and Kaiser’s injuries

arose out of Kunde Construction’s failure to cover or barricade the sewer opening, it is possible

that Pulte might be found to be vicariously liable for Kunde Construction’s acts or omissions and

therefore, Pekin has a duty to defend Pulte in the underlying litigation. We find that under the

specific facts of this case, the trial court did not err in finding that Pekin had a duty to defend

Pulte in the underlying litigation.

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

thereunder are questions of law for the court[,] which are appropriate subjects for disposition by

way of summary judgment.” Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.

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


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

favorable to the nonmoving party, indicate that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006).

We review cases involving summary judgment de novo. Ragan v. Columbia Mutual Insurance

Co., 183 Ill. 2d 342, 349 (1998). As in this case, “where the parties file cross-motions for

summary judgment, they invite the court to decide the issues presented as a matter of law.”

Liberty Mutual Fire Insurance Co. v. St. Paul Fire & Marine Insurance Co., 363 Ill. App. 3d 335,

339 (2005).

       In determining an insurer’s duty to defend its insured, a court must look to the allegations

of the underlying complaint. ?If the underlying complaints allege facts within or potentially

within policy coverage, the insurer is obliged to defend its insured even if the allegations are

groundless, false, or fraudulent.” (Emphasis omitted.) United States Fidelity & Guaranty Co. v.

Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991). ?An insurer may not justifiably refuse to defend

an action against its insured unless it is clear from the face of the underlying complaints that the

allegations fail to state facts which bring the case within, or potentially within, the policy’s

coverage.” Northbrook Property & Casualty Co. v. Transportation Joint Agreement, 194 Ill. 2d

96, 98 (2000). “[A]ny doubt with regard to such duty is to be resolved in favor of the insured.”

United Services Automobile Ass’n v. Dare, 357 Ill. App. 3d 955, 963 (2005). “[I]f the

underlying complaints allege several theories of recovery against the insured, the duty to defend

arises even if only one such theory is within the potential coverage of the policy.” Wilkin, 144

Ill. 2d at 73. “ ‘In addition, provisions that limit or exclude coverage will be interpreted liberally


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in favor of the insured and against the insurer. [Citation.] A court must construe the policy as a

whole and take into account the type of insurance purchased, the nature of the risks involved, and

the overall purpose of the contract. [Citation.]’ ” Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446,

456 (2010), quoting American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997).

       A trial court is not limited, however, to the allegations in the complaint in determining

whether an insurer has a duty to defend. This is illustrated by the recent holding in American

Economy Insurance Co. v. Holabird & Root, 382 Ill. App. 3d 1017 (2008). In that case, Caroline

Cogtella, who worked in a newly renovated building on the campus of DePaul University

(DePaul), sued several parties including Holabird & Root (H&R), the architect and general

contractor, and DePaul, the property owner, alleging that she suffered bodily injury due to her

exposure to fluorescent lighting installed in the building. Holabird & Root, 382 Ill. App. 3d at

1018. H&R tendered its defense to American Economy Insurance Company (American

Economy), because American Economy was the insurer of Metrick Electric Company (Metrick),

the electrical subcontractor that H&R hired to install the lighting in the building and because

H&R was named as an additional insured on Metrick’s policy. Holabird & Root, 382 Ill. App.

3d at 1018. “American Economy denied coverage and filed [a] declaratory judgment action as to

its duty to defend in the Cogtella litigation.” The trial court held that American Economy had an

obligation to defend H&R in the underlying litigation. Holabird & Root, 382 Ill. App. 3d at 1018.

       On appeal, American Economy “argu[ed] that the trial court erred in finding that

American Economy had a duty to defend H&R because the complaint filed by Cogtella did not

allege any negligence by Metrick and because the trial court improperly considered a third-party


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complaint filed by DePaul to find such a duty.” Holabird & Root, 382 Ill. App. 3d at 1018-19.

This court affirmed, however, holding that although the first step in determining whether an

insurer has a duty to defend is to compare the allegations of the complaint in the underlying case

to the provisions of the insurance policy, a court may look “beyond the underlying complaint if in

doing so the trial court does not determine an issue critical to the underlying action.” Holabird &

Root, 382 Ill. App. 3d at 1031. “After all, the trial court ‘need not wear judicial blinders’ and

may look beyond the complaint at other evidence appropriate to a motion for summary

judgment.” Holabird & Root, 382 Ill. App. 3d at 1032 quoting West Bend Mutual Insurance Co.

v. Sundance Homes, Inc., 238 Ill. App. 3d 335, 338 (1992).

       Similarly, in an earlier case, Fidelity & Casualty Co. of New York v. Envirodyne

Engineers, Inc., 122 Ill. App. 3d 301, 304-05 (1983), this court held that the trial court could look

beyond the underlying complaint in determining the duty to defend. The court stated that “[t]o

require the trial court to look solely to the complaint in the underlying action to determine

coverage would make the declaratory proceeding little more than a useless exercise possessing no

attendant benefit and would greatly diminish a declaratory action’s purpose of settling and fixing

the rights of the parties.” Envirodyne Engineers, Inc., 122 Ill. App. 3d at 304-05. In Pekin

Insurance Co. v. Wilson, 237 Ill. 2d 446 at 462, our supreme court recently affirmed those

holdings, stating that “Holabird & Root and Envirodyne Engineers, Inc. set forth the proper

consideration for a circuit court to use in deciding whether it is appropriate to examine evidence

beyond that contained in the underlying complaint in determining the duty to defend. ADC,

LLC”


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       Following oral argument, Pekin was granted leave to cite Pekin Insurance Co. v. Roszak

No. 1-09-1709 (June 25, 2010) as additional authority. In Roszak, the sixth division of this court

limited its analysis on the issue of the duty to defend by looking solely at the underlying

complaint, stating, “we are still tied to the words of the complaint.” Roszak, slip op. at 12.

However, as noted above, that analysis runs counter to our supreme court’s decision in Wilson,

237 Ill. 2d 446 (2010), which held that “a circuit court may, under certain circumstances, look

beyond the underlying complaint in order to determine an insurer’s duty to defend.” Wilson, 237

Ill. 2d at 459. Therefore, in determining whether Pekin has a duty to defend Pulte in the

underlying litigation, we will compare the complaint to the terms of the insurance policy issued

to Kunde Construction, but we will also look to other relevant pleadings and documents,

including the contract between Pulte and Kunde Construction.

       The complaint in the underlying Kaiser litigation alleges that “Defendants, by and

through their agents, servants and employees,” were guilty of one or more careless and negligent

acts or omissions that were the direct and proximate cause of his severe and permanent injuries.

Pekin contends that the liability alleged against Pulte in Kaiser’s complaint is independent of any

liability alleged against Kunde Construction, the named insured, and that Kaiser does not allege

that Pulte is liable solely because of some act or omission of Kunde Construction. Pekin asserts

that absent such an allegation, Pulte is not an additional insured under the policy issued to Kunde

Construction, which states that Pulte is “an additional insured only with respect to liability

incurred solely as a result of some act or omission of the insured *** and not for its own

independent negligence or statutory violation.” (Emphasis in original.) Pekin acknowledges that


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the complaint makes the same allegations against Pulte and Kunde Construction, but asserts that

because it does not allege Kunde Construction’s acts are any basis, let alone the sole basis for

Pulte’s liability, the additional insured coverage does not extend to Pulte in this case.

        We agree with Pekin that pursuant to the allegations in the underlying complaint, Pulte

might be found independently liable to Kaiser, but those allegations do not preclude the

possibility that Pulte could be found liable solely as a result of the acts or omissions of Kunde

Construction, the named insured. In that regard, we note that in response to a request to admit

Kaiser stated that he anticipated contending at the time of trial that Pulte’s liability in the

underlying litigation is vicarious to or imputed from acts or omissions of Kunde Construction.

Further, Kunde Construction, in its answer to Pulte’s counterclaim, makes several admissions

that raise the possibility that it will be found solely liable to Kaiser in the underlying litigation.

For instance, Kunde Construction admits that it is in the sewer and water business, that it entered

into a subcontract agreement with Pulte for a portion of the residential construction that is the

subject of the Kaiser litigation, that its liability and duties, if any, arise in part from that

subcontract agreement, and that its employees were working on the construction site at the

alleged time and place of Kaiser’s accident. Based on these admissions it is possible, perhaps

even likely, that Kunde Construction will be found solely liable to Kaiser in the underlying

litigation, and that if Pulte is found to be vicariously liable, that liability will result solely from

Kunde Construction’s acts or omissions.

        Turning to the contract between Pulte and Kunde Construction and the insurance policy

issued to Kunde Construction, we note that in construing contracts and insurance policies, “[t]he

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cardinal rule is to give effect to the parties’ intent, which is to be discerned from the contract

language.” Virginia Surety Co., v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556

(2007). “An insurance policy is not intended to be interpreted in a factual vacuum and without

regard to the purpose for which the insurance policy was written.” Massachusetts Bay Insurance

Co. v. Unique Presort Services, Inc., 287 Ill. App. 3d 741, 744 (1997). Therefore, in order to

construe the parties’ intent in the instant case, we must look to the language of the subcontract

agreement between Pulte Homes and Kunde Construction, as well as the insurance policy issued

by Pekin to Kunde Construction.

       Under the contract between Pulte and Kunde Construction, Kunde Construction agreed to

defend and indemnify Pulte. Specifically, section 7 of the subcontractor agreement states as

follows:

               “Subcontractor hereby agrees to save, indemnify, and keep harmless Pulte and its

       agents and employees against: all liability, claims, judgments, suits or demands for

       damages to persons or property arising out of, resulting from, or relating to Contractor’s

       performance of the work under this Agreement (‘Claims’) unless such Claims have been

       specifically determined by the trier of fact to be the sole negligence of Pulte. Contractor’s

       duty to indemnify Pulte shall arise at the time written notice of a Claim is provided to

       Pulte regardless of whether claimant has filed suit on the Claim. Contractor’s duty to

       indemnify Pulte shall arise even if Pulte is the only party sued by claimant and/or

       claimant alleges that Pulte’s negligence was the sole cause of claimant’s damages.

       Contractor’s indemnification obligation shall include, but not be limited to, any Claim

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       made against Pulte by (1) a Contractor’s employee or subcontractor who has been injured

       on property owned by Pulte; (2) a homeowner or association; and (3) a third party

       claiming patent, trademark or copyright infringement.”

       The agreement further provides:

               “Subcontractor will defend any and all Claims or suits which may be brought or

       threatened against the Contractor and will pay on behalf of the Contractor any expenses

       incurred by reason of such Claims including, but not limited to, court costs and

       reasonable attorneys’ fees incurred in defending or investigating such Claims.”

       The agreement also required Kunde Construction to add Pulte as an additional insured,

which Kunde Construction did through the additional insured endorsement to the policy issued

by Pekin, which states that Pulte “is an additional insured only with respect to liability incurred

solely as a result of some act or omission of the named insured and not for its own independent

negligence or statutory violation.”

       Pursuant to section 7 of the subcontractor agreement, Kunde Construction agreed to

defend and indemnify Pulte “unless such claims have been specifically determined by the trier of

fact to be the sole negligence of Pulte.” A finding as to whether Pulte was solely liable will not

be made until after a trial has been held and a determination of liability has been made. As noted

above, the complaint alleges that Kaiser was injured when he fell into an unguarded sewer

manhole. Kunde Construction was the sewer subcontractor, and therefore Kunde Construction

could be found solely liable to Kaiser for his injuries. As a result, any liability attributed to Pulte



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would arise solely as a result of the acts or omissions of the named insured. Under such

circumstances, Pulte would be an additional insured under the terms of the endorsement to the

insurance policy.

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

3d 356 (2003), this court held that “an insurer must defend if the insurance contract might

possibly cover the alleged source of liability. The insurer may refuse to defend only if the

insurance contract cannot possibly cover the liability arising from the facts alleged, and the

contract cannot possibly cover that liability only when the terms of the policy clearly preclude the

possibility of coverage.” Emcasco, 337 Ill. App. 3d at 359-60. Further, in Wilkin, our supreme

court stated that “[a]n insurer may not justifiably refuse to defend an action against its insured

unless it is clear from the face of the underlying complaints that the allegations fail to state facts

which bring the case within, or potentially within, the policy’s coverage.” (Emphasis omitted.)

Wilkin, 144 Ill. 2d at 73. Here, it is clear from the underlying complaint, as well as the language

in the subcontractor agreement, that the allegations state facts which bring the case within or

potentially within the policy’s coverage. Therefore, we find that the trial court did not err in

finding that Pekin has a duty to defend Pulte in the underlying litigation.

       We also note that the purpose of the insurance policy in question supports finding a duty

to defend. As this court held in American Country Insurance Co. v. James McHugh Construction

Co., 344 Ill. App. 3d 960 (2003), “In [the protypical construction site] scenario, the employee of

a contractor injured in the course of his employment on a construction site sues another entity,

usually the premises owner or another contractor, who is an additional insured under his

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employer’s liability policy. Under such a factual situation, this court has frequently found that

the additional insured is covered because it is apparent that the worker’s injury arose out of the

named insured’s operations, and ‘but for’ the plaintiff’s presence on the site in the service of the

named insured, the accident would not have happened.” McHugh, 344 Ill. App. 3d at 971. In

this case, although the underlying plaintiff, Kaiser, is not an employee of a contractor, he was

injured in the course of his employment at the construction site, when he fell into an uncovered

sewer manhole and sued the sewer subcontractor, Kunde Construction, and the general

contractor, Pulte, an additional insured under Kunde Construction’s policy. Under these facts, as

in McHugh, we find that the additional insured is covered because it is apparent that Kaiser’s

injury arose out of Kunde Construction’s operations.

       Pekin urges this court to follow a series of prior decisions from this court including

Village of Hoffman Estates v. Cincinnati Insurance Co., 283 Ill. App. 3d 1011 (1996), and the

more recent decisions in Pekin Insurance Co. v. Beu, 376 Ill. App. 3d 294 (2007), and Pekin

Insurance Co. v. United Parcel Service, Inc., 381 Ill. App. 3d 98 (2008), holding that pursuant to

an additional insured endorsement identical or nearly identical to the endorsement in this case, an

insurer does not have a duty to defend an additional insured where the underlying complaint

alleges that the additional insured’s liability is based on its own acts or omissions. However,

because we find that this case is distinguishable from each of those cases, we will not apply those

holdings in the case currently before us.

       First, in Village of Hoffman Estates, Joe Marsala, a subcontractor’s employee who was

injured in a fall from a platform at a construction site, filed a lawsuit against the Village of

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Hoffman Estates, Leopardo-Tektonic, and others for his alleged injuries. The village, the owner

of the construction project, had entered into a contract with Leopardo-Tektonic, the general

contractor, which provided that Leopardo-Tektonic was responsible for “supervising all the

work, coordinating all the construction methods, paying for all labor and materials and hiring a

superintendent.” Village of Hoffman Estates, 283 Ill. App. 3d at 1012-13. Leopardo-Tektonic

purchased liability insurance from Cincinnati Insurance Company (Cincinnati), and the village

was added as an additional insured, pursuant to an endorsement, which provided in pertinent

part: “ ‘ The “Person Insured” provision is amended to include as an INSURED the person or

organization named above but only with respect to liability incurred solely as a result of some act

or omission of the NAMED INSURED. (Emphasis omitted.)’ ” Village of Hoffman Estates, 283

Ill. App. 3d at 1013. The village requested that Cincinnati defend it in the Marsala action, but the

company refused. Village of Hoffman Estates, 283 Ill. App. 3d at 1013. The company

subsequently filed a motion for summary judgment, which the trial court granted. Village of

Hoffman Estates, 283 Ill. App. 3d at 1014-15.

       On appeal, the village argued that there was a potential for coverage because the

additional insured endorsement was ambiguous and could “have more than one reasonable

construction.” Village of Hoffman Estates, 283 Ill. App. 3d at 1013. This court disagreed and

found that the endorsement is “plain and unambiguous.” Village of Hoffman Estates, 283 Ill.

App. 3d at 1014. The court held that “[t]he endorsement specifically states that the Village is

covered only if its liability was predicated solely on the acts or omissions of Leopardo-Tektonic”

and that “[t]he term ‘solely’ implies exclusively or entirely.” (Emphasis in original.) Village of


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Hoffman Estates, 283 Ill. App. 3d at 1014. The court then found that the Marsala complaint

alleged liability directly against both the village and Leopardo-Tektonic. Each allegation in the

complaint was directed jointly and severally against “ ‘ defendants and each of them’ ” and not

solely against the named insured. Village of Hoffman Estates, 283 Ill. App. 3d at 1014.

Therefore, the court found that the explicit terms of the endorsement were not met, and the

village was not covered by Cincinnati’s policy with Leopardo-Tektonic. Village of Hoffman

Estates, 283 Ill. App. 3d at 1014.

       Subsequently, in Pekin Insurance Co. v. Beu, 376 Ill. App. 3d 294 (2007), this court

relied on Village of Hoffman Estates in holding that an insurer does not have a duty to defend an

additional insured for its own negligence. In Beu, Roger Beu entered into a contract with Castle

Builders to build a home in Woodstock, Illinois. Pekin issued an insurance policy to Castle

Builders and Beu was added as an additional insured pursuant to an endorsement, which stated in

relevant part as follows: “ ‘Who is An Insured (Section II) is amended to include as an insured

the person or organization shown in the schedule. Such person or organization is an additional

insured only with respect to liability incurred solely as a result of some act or omission of the

named insured and not for its own independent negligence or statutory violation.’ ” Beu, 376 Ill.

App. 3d at 294-95.

       When Walter Hall, an employee of T.S. Decorating, Inc., fell and was injured at the

construction site, he filed a negligence action against several defendants, including Beu and

Castle Builders. Beu tendered its defense to Pekin, which denied that it had a duty to defend and

filed a declaratory judgment complaint. Pekin moved for judgment on the pleadings, contending

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that it had no duty to defend Beu in the underlying action because Hall’s complaint alleged

liability based on Beu’s own negligence, and the policy does not provide such coverage for

additional insureds. The trial court granted Pekin’s motion and defendants appealed.

       In affirming the trial court, the fourth division of the First District noted that the insurance

policy provided that Beu was an additional insured “ ‘only with respect to liability incurred solely

as a result of some act or omission of the named insured and not for its own independent

negligence or statutory violation.’ ” (Emphasis in original.) Beu, 376 Ill. App. 3d at 297.

However, Hall’s underlying complaint specifically alleged that “ ‘as a direct and proximate result

of [the negligence] of the Defendants, and each of them,’ Hall suffered severe and permanent

injuries.” (Emphasis in original.) Beu, 376 Ill. App. 3d at 297. Therefore, the court found that

“[a]s in Village of Hoffman Estates, since the allegations in Hall’s complaint were not based

solely on the acts or omissions of the named insured, but also were predicated on the additional

insured’s alleged independent acts of negligence, plaintiff has no duty to defend the additional

insured *** under the terms of the policy.” Beu, 376 Ill. App. 3d at 297.

       Pekin also relies for support on Pekin Insurance Co. v United Parcel Service, 381 Ill.

App. 3d 98 (2008), wherein this court found that an insurer’s duty to defend pursuant to an

additional insured endorsement similar to the one at issue in this case was not triggered where the

underlying complaint alleges that the “defendants and each of them” were liable for negligence.

(Emphasis is added,) 381 Ill. App. 3d at 99. In United Parcel Service, Ron Aggen, an employee

of Swan Machinery, Inc., filed a lawsuit against United Parcel Service (UPS) and Werner

Company, for injuries he allegedly sustained when he fell from an unsafe and unstable ladder.

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United Parcel Service, 381 Ill. App. 3d at 98-99. Count I of the complaint asserted a product

liability claim against Werner, the ladder manufacturer. Count II raised a negligence action

against UPS and Werner, alleging that “ ‘Defendants, and each of them, were engaged in the

business of providing, servicing, maintaining and/or repairing’ an A-frame ladder and

‘Defendants and each of them had, in fact, serviced, maintained and/or repaired’ the ladder.” 381

Ill. App. 3d at 99. Both defendants filed third party complaints for contribution against Swan,

and UPS’s third-party complaint also sought indemnification. United Parcel Service, 381 Ill.

App. 3d at 99-100.

       UPS tendered its defense to Pekin, which had issued an insurance policy to Swan, naming

UPS as an additional insured, pursuant to an endorsement, which stated: “ ‘Who Is An Insured

(Section II) is amended to include as an insured the person or organization shown in the

schedule. Such person or organization is an additional insured solely as a result of some act or

omission of the named insured and not for its own independent negligence or statutory viola-

tion.’ ” United Parcel Service, 381 Ill. App. 3d at 103. Pekin declined the tender and filed a

declaratory judgment action seeking a determination that it owed no duty to defend UPS in the

litigation. The parties filed cross-motions for summary judgment, and the trial court issued a

written order in favor of UPS and against Pekin and finding that Pekin had an obligation under

the policy to defend UPS. United Parcel Service, 381 Ill. App. 3d at 100.

       In reversing, the sixth division of the First District stated “[w]e agree with the conclusion

reached in both Village of Hoffman Estates and [Beu]” and found that pursuant to the language

of the underlying complaint and the insurance policy, there was no potential for coverage.

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United Parcel Service, 381 Ill. App. 3d at 104. As in those cases, the underlying complaint

alleged negligence against “ ‘Defendants, and each of them’ ” for Aggen’s fall from the ladder

and the resulting injuries. (Emphasis added.) The court further found that “[t]here is nothing in

the underlying complaint to suggest that Swan’s acts or omissions were ‘solely’ to blame for

Aggen’s accident. Since negligence has been directly alleged against UPS, UPS is not covered

by the additional insured provision in the Pekin policy.” United Parcel Service, 381 Ill. App. 3d

at 104.

          Pekin argues that the additional insured endorsement in this case is substantively identical

to the endorsements in Village of Hoffman Estates, Beu, and United Parcel Service, and that in

each of those cases, this court held that an additional insured under the endorsement is insured

only with respect to liability incurred solely as a result of some act or omission of the named

insured and not for its own negligence. Therefore, Pekin asserts that it had no duty to defend

Pulte in the Kaiser litigation because the underlying complaint does not allege liability against

the additional insured based solely on the named insured’s acts. While it is true, as Pekin asserts,

that the endorsement in this case is identical to or nearly identical to the endorsement in Village

of Hoffman Estates, Beu, and United Parcel Service, because each of those cases is

distinguishable from the instant case, we decline to follow them in this case.

          First, in Village of Hoffman Estates, Beu, and United Parcel Service, the court did not

look beyond the underlying complaint, as permitted under Wilson, to analyze the terms of the

contract between the contractor or subcontractor or any other documents or evidence that could

help the court to determine whether the insurer had a duty to defend the additional insured.

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Instead, the court relied primarily on language from the complaint alleging that “the defendants

and each of them” were negligent as a basis for finding that the insurer had no duty to defend.

Conversely, in the instant case, as noted above, under the contract between Kunde Construction

and Pulte, Kunde Construction had a duty to defend Pulte “unless such claims have been

specifically determined by the trier of fact to be the sole negligence of Pulte.” Since Pulte is an

additional insured in the policy Pekin issued to Kunde, Pekin had a duty to defend Pulte until a

trier of fact has made a determination regarding liability.

       Further, in United Parcel Service neither the underlying complaint nor the third-party

complaint alleged that the named insured, Swan, was in any way liable for the accident.

Conversely, here, the named insured, Kunde Construction, the sewer contractor, was named as a

defendant in the underlying litigation. As addressed above, based on the facts at issue in this

case, it is possible, if not likely, that Kunde Construction will be found solely liable for failing to

ensure that no one would be injured by falling into an unguarded sewer manhole. As a result,

any liability that Pulte may incur would be based solely on the acts or omissions of the named

insured. Until that determination is made, Pulte is an additional insured under the terms of the

insurance policy, and Pekin had a duty to defend it in the underlying Kaiser litigation.

       In a recent opinion, Pekin Insurance Co. v. Hallmark Homes, L.L.C., 392 Ill. App. 3d 589

(2009), the second district held that an insurer had a duty to defend an additional insured, a

general contractor, because it could potentially be solely liable for the named insured’s acts or

omissions, based on a theory of vicarious liability as the general contractor for failing to

adequately supervise the construction site. Hallmark Homes, 392 Ill. App. 3d at 595. While we

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reach the same conclusion as the Hallmark Homes court regarding the insurer’s duty to defend,

because we find that Pekin has a duty to defend Pulte pursuant to the specific terms of the

subcontractor agreement as well as the facts giving rise to the underlying litigation, we need not

address that holding in reaching our conclusion.

        Lastly, Pulte argues that if it is not covered under the policy as an additional insured, the

policy’s coverage is illusory and, therefore, against public policy. As we have held that Pekin

does owe Pulte a duty to defend under the policy, we need not reach this argument.

                                        III. CONCLUSION

        For the foregoing reasons, we affirm the judgment of the trial court granting summary

judgment to Pulte finding that Pekin had a duty to defend Pulte in the underlying Kaiser

litigation.

        Affirmed.

        MURPHY, P.J., and STEELE, J., concur.




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