                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




  Illinois Emcasco Insurance Co. v. Waukegan Steel Sales Inc., 2013 IL App (1st) 120735




Appellate Court            ILLINOIS EMCASCO INSURANCE COMPANY, Plaintiff-Appellant,
Caption                    v. WAUKEGAN STEEL SALES INC., a Corporation, and JOHN
                           WALLS, Defendants-Appellees.


District & No.             First District, Fifth Division
                           Docket No. 1-12-0735


Filed                      September 13, 2013


Held                       In a declaratory judgment action seeking a determination that plaintiff
(Note: This syllabus       insurer was not obligated to defend defendant steel company as an
constitutes no part of     additional insured under the policy obtained by a subcontractor in an
the opinion of the court   underlying action for the injuries suffered by one of the subcontractor’s
but has been prepared      employees, the trial court properly entered summary judgment for the
by the Reporter of         steel company, since an examination of the subcontract showed that the
Decisions for the          parties intended that the steel company would be potentially exposed to
convenience of the         vicarious liability that would be covered under the subcontractor’s policy,
reader.)
                           and the third-party complaints in the underlying action alleged that the
                           subcontractor’s negligence was the cause of its employee’s injuries,
                           thereby raising the possibility that the steel company was vicariously
                           liable for that negligence.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-46757; the
Review                     Hon. Sophia Hall, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Keith Carlson, of Carlson Law Offices, of Chicago, for appellant.
Appeal
                           William Busse, Jr., and Jason E. DeVore, both of Busse, Busse & Grasse,
                           P.C., of Chicago, for appellees.


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




                                            OPINION

¶1          Plaintiff Illinois Emcasco Insurance Company (Emcasco) filed a declaratory judgment
        action in November 2009 asking the trial court to declare that it had no duty to defend
        defendant Waukegan Steel Sales, Inc. (Waukegan), in the underlying personal injury suit
        filed by an employee of Waukegan’s subcontractor. Emcasco argued that the complaint
        alleged only direct negligence on the part of Waukegan, which was outside the scope of
        Waukegan’s coverage as an additional insured on its subcontractor’s policy with Emcasco.
¶2          Waukegan filed a counterclaim seeking declaratory judgment that Emcasco had a duty
        to defend. The trial court granted summary judgment in October 2011 for Waukegan, finding
        that Emcasco had a duty to defend Waukegan in the underlying personal injury lawsuit.
        Emcasco subsequently filed this appeal challenging the trial court’s finding. For the reasons
        that follow, we affirm the judgment of the trial court.

¶3                                       BACKGROUND
¶4          On June 15, 2009, Waukegan sent Emcasco a letter tendering the defense and indemnity
        in relation to the underlying lawsuit filed by John Walls (Walls) against Waukegan for
        injuries he sustained in October 2007 while working for I-MAXX Metalworks, Inc. (I-
        MAXX), on the Minooka High School construction site. Walls was injured when a stair
        stringer and/or perimeter cable protection failed, which caused him to fall while he was
        working in his capacity as an I-MAXX employee. In March 2009, Walls filed an amended
        complaint asserting one count against Waukegan alleging that he was injured due to
        Waukegan’s negligence in failing to properly manage, operate, and maintain the premises,
        not performing reasonable inspections, failing to provide a safe workplace, and failing to
        have or maintain proper fall protection among others.
¶5          Waukegan’s letter referenced the subcontract agreement that Waukegan and I-MAXX
        entered into May 2007. That subcontract agreement provides:
                “I-MAXX is solely responsible for the means, methods and safety of its employees

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         while on the jobsite. Waukegan assumes no liability for the supervision of erectors men
         and equipment. I-MAXX is to provide a competent supervisor while performing their
         work. This project will require multiple mobilizations.”
     The contract also required I-MAXX to obtain and maintain insurance under which Waukegan
     would be a covered as an additional insured for bodily injury, property damage or personal
     and advertising injuries caused by I-MAXX’s acts or omissions. Emcasco was the provider
     of the insurance obtained by I-MAXX. The policy provides coverage for an additional
     insured “with respect to operations performed under or incident to this contract.” The policy
     also included a blanket additional insured endorsement, which states, in relevant part:
         “[Waukegan] is an additional insured only with respect to liability for ‘bodily injury,’
         ‘property damage’ or ‘personal and advertising injury’ caused, in whole, by:
                  1. Your acts or omissions; or
                  2. The acts or omissions of those acting on your behalf;
         in performance of your ongoing operations for the additional insured.”
     The endorsement further states:
              “This insurance does not apply to:
                  1. Bodily injury, property damage or personal and advertising injury resulting
              from any act or omission by, or willful misconduct of the additional insured, whether
              the sole or a contribution cause of the loss. The coverage afforded to the additional
              insured is limited solely to the additional insured’s vicarious liability that is a
              specific and direct result of your conduct.
                  Vicarious liability as used in this endorsement means liability that is imposed on
              the additional insured solely by virtue of its relationship with you, and not due to any
              act or omission of the additional insured.” (Emphases added.)
     Under this provision, Waukegan argued in the tendered defense letter that Emcasco had a
     duty to defend and indemnify Waukegan on a primary, noncontributory basis in the Walls
     complaint.
¶6       On August 21, 2009, Emcasco sent a letter response denying Waukegan’s request to
     tender defense. Emcasco stated that although Waukegan otherwise met the requirements to
     be covered by the additional insured provision, the facts of the situation, particularly the
     allegations of direct negligence on Waukegan’s part, were excluded from coverage by the
     vicarious liability provision in the policy. Specifically, Emcasco indicated that the Walls
     complaint’s allegations that Waukegan itself failed to make reasonable inspection of the
     premises, improperly managed, operated or maintained the premises, failed to provide a safe
     place within which to work, failed to provide proper support for stringer and allowed work
     to proceed without a safe, suitable and proper perimeter cable system for fall protection were
     not attributable to I-MAXX and were therefore outside the scope of the policy. On November
     20, 2009, Emcasco then filed the instant action seeking a declaratory judgment that the policy
     did not provide coverage due to the exclusion contained in the additional insured clause.
¶7       The Walls complaint also contained one count, essentially identical to the count against
     Waukegan, against both Turner Construction Company (Turner) and Frontier Construction,

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       Inc. (Frontier). Individually, Turner and Frontier filed third-party complaints against I-
       MAXX alleging that I-MAXX’s acts or omissions were either the direct and proximate cause
       of or contributed to Walls’ injuries. Both third-party complaints allege that I-MAXX failed
       to:
           “make a reasonable inspection of the premises and the work being done, properly
           operate, manage, maintain and control the premises, provide a safe workplace, warn of
           dangerous conditions then existing, provide adequate safeguards to prevent injury,
           supervise the work being done, provide safe, suitable and proper perimeter cable system
           for fall protection, provide proper support for stringers, design and/or fabricate shelve
           lugs for the stair stringer and additional stairways, properly disallow and/or stop work
           with improper design and/or fabrication of shelve lugs, properly disallow and/or stop
           work without a safe, suitable and proper perimeter cable system for fall protection, and
           properly erect, disallow or stop work with an improper perimeter cable.”
       Waukegan was not a party to these third-party complaints. In August 2010, Turner previously
       filed jointly with Waukegan in the initial motion for summary judgment on Emcasco’s
       declaratory judgment action with their respective counterclaims of vicarious liability for the
       actions of I-MAXX and asserting Emcasco’s duty to defend, but it withdrew from the
       declaratory judgment action shortly thereafter. The trial court reviewed the cross-motions for
       declaratory judgment.
¶8         On October 7, 2011, the trial court entered an order granting summary judgment for
       Waukegan, concluding that where there is a possibility that at least one allegation is
       potentially covered by an insurance policy, their insurer has a duty to defend the insured, and
       since the injury took place at the worksite of the named insured, I-MAXX, it found that it
       arose out of I-MAXX’s operations. The trial court further determined that a duty to defend
       could be derived from the third-party complaints filed by Turner and Frontier, since they
       alleged direct negligence on the part of I-MAXX. The trial court granted declaratory
       judgment in favor of Waukegan; plaintiff Emcasco filed this timely appeal.

¶9                                          ANALYSIS
¶ 10       Plaintiff contends on appeal that the trial court erred in finding that it had a duty to
       defend Waukegan because the underlying complaint failed to allege facts of vicarious
       liability as required for the insurance policy to be activated, and the court should not have
       reviewed the third-party complaints to determine the applicability of the policy.
¶ 11       “The construction of an insurance policy and a determination of the rights and obligations
       thereunder are questions of law for the court [to decide and] are appropriate subjects for
       disposition by way of summary judgment.” Crum & Forster Managers Corp. v. Resolution
       Trust Corp., 156 Ill. 2d 384, 391 (1993). We review cases involving summary judgment de
       novo. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349 (1998). Summary
       judgment is appropriate where the pleadings, depositions, and admissions on file, together
       with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving
       party, indicate that there is no genuine issue of material fact and that the moving party is
       entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006). Where the

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       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).
¶ 12       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.’ ” Pekin Insurance Co. v. Pulte Home Corp., 404 Ill. App.
       3d 336, 340 (2010) (quoting United States Fidelity & Guaranty Co. v. Wilkin Insulation Co.,
       144 Ill. 2d 64, 73 (1991)). A court compares the allegations in the underlying complaint to
       the relevant provisions of the insurance policy, and if the facts alleged fall within, or
       potentially within, the policy’s coverage, the insurer’s duty to defend arises. Pekin Insurance
       Co. v. Wilson, 237 Ill. 2d 446, 455 (2010).
¶ 13       Where the insurer rejects a tender of defense based on a provision that it contends
       excludes coverage, we review the applicability of that provision to ensure it is “ ‘ “clear and
       free from doubt” that the policy’s exclusion prevents coverage.’ ” Pekin Insurance Co. v.
       Equilon Enterprises LLC, 2012 IL App (1st) 111529, ¶ 14 (quoting Atlantic Mutual
       Insurance Co. v. American Academy of Orthopaedic Surgeons, 315 Ill. App. 3d 552, 560
       (2000)). Courts take into consideration “the risk undertaken, the subject matter and the
       purpose of the [policy].” (Internal quotation marks omitted.) Equilon Enterprises, 2012 IL
       App (1st) 111529, ¶ 28. The policy must be given its plain and ordinary meaning when the
       language is unambiguous. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479
       (1997). The court reviews the interpretation of an insurance policy de novo. State Farm
       Mutual Automobile Insurance Co. v. Villicana, 181 Ill. 2d 436, 441 (1998).
¶ 14       The facts of this case are not at issue; on appeal, the sufficiency of the underlying
       complaint on its own to trigger a duty to defend is not contested. The Walls complaint alleges
       that Waukegan coordinated the work being done and designated various work methods,
       maintained and checked work progress, participated in the scheduling and inspection of the
       work, and had authority to stop the work, refuse the work and materials and order changes
       in the work, in the event the work was being performed in a dangerous manner or for any
       other reason. Direct allegations of negligence against an additional insured do not fall within
       coverage granted “ ‘ “only with respect to liability incurred solely as a result of some act or
       omission of the named insured and not for [the additional insured’s] own independent
       negligence or statutory violation.” ’ ” Pekin Insurance Co. v. Roszak/ADC, LLC, 402 Ill.
       App. 3d 1055, 1061 (2010) (quoting Pekin Insurance Co. v. Beu, 376 Ill. App. 3d 294, 297
       (2007)). As the underlying complaint alleges liabilities against Waukegan solely for its
       actions or inactions, the complaint alone is not sufficient to create a duty to defend. However,
       the inquiry cannot stop there.
¶ 15       A trial court is not limited to the allegations in the complaint in determining whether an
       insurer has a duty to defend. Pulte, 404 Ill. App. 3d at 340. Our supreme court in Wilson
       declined to “limit the source of an insurer’s duty to defend ‘solely’ to the content of the
       underlying complaint in all cases.” Wilson, 237 Ill. 2d at 458. In certain circumstances, a
       court can review the contract and third-party complaints to determine the insurer’s duty to
       defend. Id. at 459. Requiring the trial court “look solely to the complaint in the underlying

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       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.” Fidelity & Casualty Co. of
       New York v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 304-05 (1983). The only time
       such evidence should not be permitted is when it tends to determine an issue crucial to the
       determination of the underlying lawsuit. Id. at 305.
¶ 16       Emcasco contends that the trial court’s review of the third-party complaints to determine
       whether Emcasco had a duty to defend was improper. Emcasco relies on Roszak, 402 Ill.
       App. 3d at 1067, arguing that the underlying facts of this case are most similar to Roszak and
       the court is thereby bound by the allegations within the complaint. In the underlying suit in
       Roszak, a worker filed suit against Roszak, the general contractor, and Rockford, the
       subcontractor, for injuries sustained while employed by Area Erectors and working on their
       construction project. Roszak, 402 Ill. App. 3d at 1056. Under Rockford’s insurance policy
       with Pekin, Roszak was named as an additional insured for vicarious liability only. Id. at
       1058. Pekin refused to defend when Roszak tendered the complaint. The appellate court
       reversed the trial court’s holding in favor of Roszak, concluding that they were bound to the
       allegations in the complaint which failed to raise the possibility that Roszak could be found
       vicariously liable for Rockford’s actions and, as such, Pekin had no duty to defend. Id. at
       1067. However, here, unlike in Roszak, there are third-party complaints which provide a
       basis for Waukegan being liable solely on the basis of I-MAXX’s liability.
¶ 17       Emcasco seeks to restrict the ability of the court to review such additional documents by
       focusing on the phrase “unusual and compelling” as used in Zurich Insurance Co. v.
       Raymark Industries, Inc., 118 Ill. 2d 23, 35 (1987), but rejected in National Union Fire
       Insurance Co. of Pittsburgh v. R. Olson Construction Contractors, Inc., 329 Ill. App. 3d 228,
       238 (2002). However, our supreme court in Wilson, 237 Ill. 2d at 458-59, followed Illinois
       cases which did not require such circumstances and did not limit a court’s review only to the
       underlying complaint. Olson Construction, 329 Ill. App. 3d 228; accord L.J. Dodd
       Construction, Inc. v. Federated Mutual Insurance Co., 365 Ill. App. 3d 260, 262 (2006).
       Furthermore, the First District has not followed Zurich in restricting review of third-party
       complaints to situations where there are unusual and compelling circumstances. In neither
       Pulte, 404 Ill. App. 3d 336, nor Roszak, 402 Ill. App. 3d 1055, did the court’s decision rest
       upon whether the situation was so unusual and compelling as to require the court to look at
       additional material. Thus, Zurich, if applied in a situation such as this, would run contrary
       to our supreme court’s decision in Wilson as well as our decisions in Pulte and Roszak.
       Furthermore, Emcasco’s comparison of this case to Beu, 376 Ill. App. 3d 294, and Pekin
       Insurance Co. v. United Parcel Service, Inc., 381 Ill. App. 3d 98 (2008), is unavailing as
       these two cases also had no third-party complaints for the courts to review in their
       determinations, and as such, the court was properly bound by the allegation pled.
¶ 18       Rather, the case at hand is more analogous to the facts in Pulte. Although Emcasco
       attempts to characterize the additional insured policy in the present case as more narrow than
       the one in Pulte, the facts are similar. In Pulte, the general contractor, Pulte, was an
       additional insured under a policy held by Kunde Construction. The policy provided coverage
       for an additional insured “only with respect to liability incurred solely as a result of some act

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       or omission of the named insured and not for its own independent negligence or statutory
       violation.” Pulte, 404 Ill. App. 3d at 338. The court found that although the underlying
       complaint alleged direct negligence, the third-party complaints provided additional
       allegations which showed that the additional insured could have been found negligent solely
       due to the actions of the primary insured. Id. The court also reviewed American Economy
       Insurance Co. v. Holabird & Root, 382 Ill. App. 3d 1017 (2008), in making its decision.
       Holabird & Root granted reviewing courts large latitude to consider third-party complaints
       in the interest of “settling and fixing the rights of the parties.” (Internal quotation marks
       omitted.) Id. at 1032. Evidence beyond the underlying complaint, including third-party
       complaints which are the subject of the issue here, may be examined as long as the court does
       not determine an issue critical to the underlying action. Id. at 1031; see also Envirodyne
       Engineers, 122 Ill. App. 3d at 305. The court in Pulte upheld the trial court’s ruling, finding
       a duty to defend existed. Here, as in Pulte and Holabird & Root, the third-party complaints
       were reviewed solely to determine whether there was a possibility that I-MAXX could have
       been at fault for the injuries Walls sustained.
¶ 19       Emcasco also argues that, due to the timing of Turner’s third-party complaint, it should
       not have been reviewed. In doing so, it cites National Fire Insurance of Hartford v. Walsh
       Construction Co., 392 Ill. App. 3d 312 (2009), where the court declined to review a third-
       party complaint in connection with a declaratory judgment action where the insurer’s duty
       to defend was at issue. However, Walsh is inapposite. The Walsh court declined to review
       a third-party complaint when it was issued by the party who was seeking the declaratory
       judgment. Id. at 322. The court there stated that the third-party complaint only served as self-
       serving statements which would offer nothing that could not have been provided in the
       declaratory judgment action. Id. (citing American Economy Insurance Co. v. DePaul
       University, 383 Ill. App. 3d 172 (2008)). That is not the case here. Waukegan is not relying
       on a third-party complaint which was written by it and used to bolster its position. Instead,
       Waukegan is relying on complaints fashioned by other parties against I-MAXX. Both third-
       party complaints include allegations of fault by I-MAXX as the underlying cause of Walls’
       injuries. Those allegations make this case analogous to Holabird & Root, and, as such, the
       third-party complaints can be reviewed to determine Emcasco’s obligation to defend
       Waukegan.
¶ 20       Emcasco’s next contention is that the third-party complaints are insufficient to support
       a duty to defend because both parties are seeking contribution for the negligent actions of I-
       MAXX. Emcasco argues that because both third-party complaints alternatively allege a
       possibility that I-MAXX might only be partially liable for Walls’ injuries, that is insufficient
       to support Waukegan’s claim. We disagree. The allegations of the complaint only need to
       raise the potential for the allegations to fall into the ambit of the insurance policy. Equilon
       Enterprises, 2012 IL App (1st) 111529, ¶ 14. The contract between Waukegan and I-MAXX
       demonstrates the intent of both parties to limit the liability of Waukegan in relation to I-
       MAXX employees and equipment. Both third-party complaints allege I-MAXX’s liability
       for Walls’ injuries, thus raising the potential for Waukegan to be held vicariously liable for
       any such negligence.
¶ 21       Finally, Emcasco asserts that because Waukegan lacked sufficient control over I-

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       MAXX’s performance and the worksite as under section 414 of the Restatement (Second)
       of Torts (1965), and as discussed in Roszak, there can be no finding of vicarious liability so
       as to trigger a duty to defend. Generally, “one who employs an independent contractor is not
       liable for the acts or omissions of the latter.” Martens v. MCL Construction Corp., 347 Ill.
       App. 3d 303, 313 (2004). Section 414 of the Restatement (Second) of Torts (1965) states:
                    “One who entrusts work to an independent contractor, but who retains the control
                of any part of the work, is subject to liability for physical harm to others for whose
                safety the employer owes a duty to exercise reasonable care, which is caused by his
                failure to exercise his control with reasonable care.”
       Emcasco contends that the court should follow the Roszak court’s interpretation requiring
       more than general supervisory control “of some part of the subcontractor’s work in order to
       be subject to vicarious liability for the subcontractor’s actions.” Roszak, 402 Ill. App. 3d at
       1064.
¶ 22       Emcasco relies on section 414, comment c, of the Restatement (Second) of Torts (1965),
       as construed by the court in Roszak, in an attempt to limit Waukegan’s potential right to
       defense. There the court determined that a “general contractor that retains the power to
       coordinate the order in which work is done and to stop work that is performed dangerously
       *** does not retain sufficient control so as to be vicariously liable for the subcontractor’s
       negligence.” Roszak, 402 Ill. App. 3d at 1067. The facts held solely within Walls’ complaint
       allege facts of Waukegan’s control almost identical to the allegations within Roszak. A key
       point of focus in reviewing the underlying complaints is allegations of independent
       negligence on the part of the additional insured. Id. at 1066. However, a finding of a duty to
       defend in this case is not inconsistent with the decisions in Beu, UPS and in Roszak.
       Although Restatement section 414 is important in determining whether an independent
       contractor is vicariously liable, at this juncture, the question is not whether Waukegan is
       vicariously liable. Rather, the issue is whether Emcasco has a duty to defend Waukegan
       because it could potentially be found vicariously liable for Walls’ injuries.
¶ 23       Reading Walls’ complaint in conjunction with the third-party complaints, we find that
       they raise the potential for vicarious liability on the part of Waukegan. Walls’ complaint
       specifically alleges that “the Defendant [Waukegan], by and through its agents, servants and
       employees, was then and there guilty of one or more of the following careless and negligent
       acts and/or omissions.” It then proceeds to list 12 allegations of negligence against
       Waukegan. The third-party complaints repeat these 12 allegations of negligence verbatim in
       seeking contribution from I-MAXX. That is, I-MAXX’s alleged negligence is identical to
       that of “agents, servants and employees” of Waukegan. Taking this as a whole, it at least
       implies that I-MAXX may be one of those “agents, servants and employees” of Waukegan,
       as would expose Waukegan to vicarious liability even under the terms of section 414.
¶ 24       Pulte is also instructive here. The court in Pulte examined the facts in the underlying
       complaint, the agreement between the contractors and the insurance policy to determine the
       insurance provider’s duty to defend. Pulte, 404 Ill. App. 3d at 342. There the court concluded
       that because the general contractor and the subcontractor had entered into an agreement, and
       the employee was working on the designated site of the subcontractor at the time of the
       injury, there was a possibility that the general contractor could be found vicariously liable

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       for the subcontractors’ actions. Id. When the court examined the contract between the parties,
       it determined the facts were within the typical scenario where “ ‘the employee of a contractor
       injured in the course of his employment on a construction site sues another entity, *** who
       is an additional insured under his employer’s liability policy.’ ” Id. at 344 (quoting American
       Country Insurance Co. v. James McHugh Construction Co., 344 Ill. App. 3d 960, 971
       (2003)). In such situations, the court often finds “ ‘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.’ ” Id. at 345 (quoting American Country Insurance, 344
       Ill. App. 3d at 971).
¶ 25        When construing contracts and insurance policies, “ ‘[t]he cardinal rule is to give effect
       to the parties’ intent, which is to be discerned from the contract language.’ ” Pulte 404 Ill.
       App. 3d at 343 (quoting Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill.
       2d 550, 556 (2007)). The subcontract between Waukegan and I-MAXX, as in Pulte,
       demonstrates an intent of both parties that Waukegan would only be potentially exposed to
       vicarious liability, which would then be covered by I-MAXX’s insurance policy with
       Emcasco. The contract provides: “Description: I-MAXX is solely responsible for the means,
       methods & safety of its employees while on the jobsite. [Waukegan] assumes no liability for
       the supervision of erectors men and equipment. I-MAXX is to provide a competent
       supervisor while performing their work. This project will require multiple mobilizations.”
       The contract further required I-MAXX to secure insurance by which Waukegan would be
       named an additional insured for “operations performed under or incident to this contract.”
       Also present here, as in Pulte, is an indemnification provision providing for I-MAXX to
       indemnify Waukegan “to from and against all claims, damages, losses and expenses,
       including but not limited to attorneys’ fees, arising out of or resulting from Subcontractor’s
       work, goods, services provided.” Additionally, allegations within the third-party complaints
       assist in determining the obligations of the insurer. Here, the two additional complaints
       allege negligent actions on the part of I-MAXX as the cause of the injuries Walls sustained,
       which raise the possibility that Waukegan may be vicariously liable for I-MAXX’s actions.
¶ 26        Thus, we conclude that the trial court did not err in concluding that Emcasco has a duty
       to defend Waukegan. It is not clear and free from doubt that Waukegan can only be found
       directly liable for Walls’ injuries. See Equilon Enterprises, 2012 IL App (1st) 111524, ¶ 19
       (an insurer may only reject a tender of defense based on an exclusion if it is clear and free
       from doubt that the exclusion prevents coverage).

¶ 27      Affirmed.




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