Allied Property & Casualty Insurance Co. v. Metro North Condominium Ass'n ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1868
ALLIED PROPERTY & CASUALTY INSURANCE COMPANY, et al.,
Plaintiffs-Appellees,
v.
METRO NORTH CONDOMINIUM ASSOCIATION,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-cv-03925 — Jorge L. Alonso, Judge.
____________________
ARGUED OCTOBER 27, 2016 — DECIDED MARCH 8, 2017
____________________
Before WOOD, Chief Judge, and BAUER and MANION, Circuit
Judges.
MANION, Circuit Judge. Allied Property and Casualty In-
surance Company issued a commercial general liability pol-
icy insuring a subcontractor who worked on a multi-unit res-
idential property owned by Metro North Condominium As-
sociation. In 2006 the Metro North property sustained exten-
sive water damage caused by the subcontractor’s defective
window installation. Metro North and the subcontractor
2 No. 16-1868
reached a settlement in which the subcontractor assigned to
Metro North its right to any insurance proceeds covering the
damage. The subcontractor’s insurers (Allied and another in-
surer named AMCO) then filed this declaratory judgment ac-
tion seeking a declaration that they were not required to cover
the losses claimed in the settlement. The district court found
for the insurers, and Metro North appeals. We affirm.
I. BACKGROUND
Over ten years ago, Metro North Condominium Associa-
tion hired a developer to build a condominium in Chicago.
The developer used two subcontractors, CSC Glass and CSC
Construction (collectively called CSC), to install the building’s
windows. CSC installed the windows defectively, and as a re-
sult the building sustained significant water damage follow-
ing a rain storm in October 2006. The condominium unit own-
ers also incurred personal-property damage.
In 2009 Metro North sued the developer in Illinois state
court for more than $5 million in damages. The developer ap-
parently turned out to be insolvent, and in 2013 Metro North
filed a fourth amended complaint that added a claim against
CSC for breach of the implied warranty of habitability.1 Metro
North also brought a negligence claim against CSC, but that
claim was dismissed with prejudice because it was filed after
the statute of limitations had expired.
1Ordinarily the implied warranty of habitability does not apply to
subcontractors like CSC, but Illinois courts have recognized an exception
when the developer is insolvent. Minton v. Richards Grp. of Chic., 452
N.E.2d 835, 837 (Ill App. Ct. 1983).
No. 16-1868 3
In 2015 Metro North and CSC reached a settlement in
which Metro North dismissed its pending lawsuit. In ex-
change, CSC assigned to Metro North CSC’s rights to pay-
ment, if any, of up to $700,000 of insurance coverage from Al-
lied Property & Casualty Insurance Company (“Allied”). The
settlement specified that the right to payment had to “aris[e]
out of the claims asserted against CSC in the [underlying Illi-
nois] Action or this Settlement thereof.” At the time of the set-
tlement, the only pending claim against CSC in the underly-
ing lawsuit was Metro North’s claim for breach of the implied
warranty of habitability. The settlement further specified that
it was not intended to compensate Metro North for the cost of
repairing or replacing CSC’s defectively installed windows,
but rather for the resultant damage to the remaining parts of
Metro North’s condominium and to the unit owners’ personal
property.
Allied insured CSC under a standard commercial general
liability policy (CGL policy) effective from March 2006 to
March 2007.2 The policy required Allied to pay CSC for any
covered property damage for which CSC became liable: “We
will pay those sums that the insured becomes legally obli-
gated to pay as damages because of ‘bodily injury’ or ‘prop-
erty damage’ to which this insurance applies.” The policy also
contained a number of exclusions identifying damages for
which there was no coverage. For instance, several provisions
(collectively referred to here as the “your work” exclusions),
2 During that time, CSC also had coverage through an umbrella policy
issued by AMCO Insurance Company. The relevant terms of the AMCO
and Allied policies are materially the same, so we (like the parties) will
simply refer to Allied’s policy for the remainder of our discussion.
4 No. 16-1868
excluded coverage for damage to the particular part of the rel-
evant property worked on by CSC, or for the cost of repairing
or replacing CSC’s own defective work. Under Exclusion 2.b,
the policy also excluded coverage for damages arising from
“contractual liability,” that is, damages that CSC became obli-
gated to pay “by reason of the assumption of liability in a con-
tract or agreement.” This exclusion applied only if CSC would
not have been liable “in the absence of the contract or agree-
ment.”
When Allied learned of CSC’s settlement, it brought this
diversity action against Metro North in federal court, seeking
a declaratory judgment that it was not liable for the damages
claimed in the settlement. Metro North filed a cross-motion
for summary judgment to the contrary. In 2016 the district
court entered an order denying Metro North’s cross-motion
and granting summary judgment for Allied, finding that the
settlement damages were not covered under Allied’s policy.
Metro appeals.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo, construing all facts and reasonable inferences “in fa-
vor of the party against whom the motion under considera-
tion was made.” Nat’l Am. Ins. Co. v. Artisan & Truckers Cas.
Co., 796 F.3d 717, 723 (7th Cir. 2015). Summary judgment is
required if the movant shows that “there is no genuine dis-
pute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a).
The parties agree that this dispute is governed by Illinois
law. See Santa’s Best Craft, LLC v. St. Paul Fire & Marine Ins. Co.,
611 F.3d 339, 345 (7th Cir. 2010). In Illinois, an insurer has a
No. 16-1868 5
duty to indemnify “when the insured becomes legally obli-
gated to pay damages in the underlying action that gives rise
to a claim under the policy.” Traveler’s Ins. Co. v. Eljer Mfg., Inc.,
757 N.E.2d 481, 491 (Ill. 2001). “Once the insured has incurred
liability as a result of the underlying claim, an insurer’s duty
to indemnify arises only if ‘the insured’s activity and the re-
sulting loss or damage actually fall within the CGL policy’s
coverage.’” Id. at 492. The duty to indemnify is significantly
narrower than the duty to defend, which applies “if the com-
plaint alleges facts that are even potentially within the cover-
age of the insurance policy.” Ohio Cas. Ins. Co. v. Bazzi Constr.
Co., 815 F.2d 1146, 1147 (7th Cir. 1987). The construction of a
CGL policy is a question of law. See CMK Dev. Corp. v. W. Bend
Mut. Ins. Co., 917 N.E.2d 1155, 1162 (Ill. App. Ct. 2009).
The question in this appeal is whether Allied’s policy re-
quires it to indemnify CSC (and hence CSC’s assignee, Metro
North) for the damages claimed in CSC’s settlement. Allied
has a duty to indemnify only if the damages stemming from
the underlying claim that resulted in liability actually fall
within the policy’s coverage. See Eljer Mfg., 757 N.E.2d at 492.
According to the settlement, Metro North’s claim for breach
of the implied warranty of habitability is the only claim giving
rise to CSC’s liability. Thus, Allied is liable only if the legally
recoverable damages stemming from that claim are covered
by the policy. We agree with the district court that they are
not.
The measure of damages for a breach of the implied war-
ranty of habitability is the cost of repairing the “defective con-
ditions,” here the defectively installed windows. See Park v.
Sohn, 433 N.E.2d 651, 657 (Ill. 1982); Hills of Palos Condo. Ass’n,
Inc. v. I-Del, Inc., 626 N.E.2d 1311, 1330 (Ill. App. Ct. 1993). But
6 No. 16-1868
Illinois courts have concluded that CGL policies like Allied’s
do not cover the cost of repairing the insured’s defectively
completed work. See Pekin v. Richard Marker Assocs., Inc., 682
N.E.2d 362, 365 (Ill. App. Ct. 1997) (CGL policies are “not in-
tended to pay the costs associated with repairing or replacing
the insured’s defective work and products, which are purely
economic losses”); Bazzi, 815 F.2d at 1148 (collecting cases).
That conclusion is certainly true here, where the “your work”
exclusions of Allied’s policy specifically exclude the cost of re-
pairing CSC’s defective work.3 What is more, notwithstand-
ing the limited recovery available for breach of the implied
warranty of habitability, the settlement indicates (ironically)
that Metro North was not seeking the cost of repairing CSC’s
defectively installed windows, a point that Metro North also
concedes on appeal.
Although the precise labeling of the claim against the in-
sured is not dispositive when determining coverage, coverage
must still be consistent with some viable theory of recovery
before a duty to indemnify can arise. See Medmarc Cas. Ins. Co.
v. Avent Am., Inc., 612 F.3d 607, 613 (7th Cir. 2010) (“Although
we focus on factual allegations above legal theories, ‘factual
allegations are only important insofar as they point to a the-
3Even apart from those exclusions, claims based on the implied war-
ranty of habitability are contract claims that are not covered by standard
CGL policies. See 933 Van Buren Condo. Ass’n v. W. Van Buren, LLC, 61
N.E.3d 929, 945 (Ill App. Ct. 2016) (claim for breach of the implied war-
ranty of habitability is a contract claim, not a tort claim); Viking Constr.
Mgmt., Inc. v. Liberty Mut. Ins. Co., 831 N.E.2d 1, 8–9 (Ill. App. Ct. 2005)
(potential liability arising from breach-of-contract claims against insured
did not fall within coverage of policy and did not trigger duty to defend).
No. 16-1868 7
ory of recovery.’”); Health Care Indus. Liab. Ins. Program v. Mo-
mence Meadows Nursing Ctr., Inc., 566 F.3d 689, 696 (7th Cir.
2009); U.S. Fid. & Guar. Co. v. Wilkin Insulation Co., 578 N.E.2d
926, 932 (Ill. 1991) (noting that the duty to defend arises when
a “theory of recovery alleges potential coverage”). See also
William J. Templeman Co. v. Liberty Mut. Ins. Co., 735 N.E.2d
669, 676 (Ill. App. Ct. 2000) (explaining that coverage depends
on the cause of action claiming a right to recovery; “[i]t is not
sufficient that the facts alleged could have been framed in a
different proceeding to cover a cause of action which would
fall within the policy”). Here, breach of the implied warranty
of habitability was the only legal theory in play at the time of
the settlement, but that theory does not allow for the recovery
of damages covered by the policy.4
In short, liability for the cost of remedying CSC’s defec-
tively installed windows—which is the only cost for which
CSC was liable based on Metro North’s only claim against it—
is not covered under Allied’s policy. By the settlement’s own
terms, then, the claimed right to payment does not “aris[e] out
of the claims asserted against CSC” in the underlying lawsuit
or the parties’ agreement, and CSC therefore has no duty to
indemnify.
4 Perhaps Metro North could have established coverage based on a
theory of negligence (which allows for a broader recovery), but by the time
of the settlement, negligence was not a viable theory of recovery because
Metro North’s negligence claim had already been dismissed with preju-
dice as time-barred under the statute of limitations. See Del Monte Fresh
Produce N.A., Inc. v. Transp. Ins. Co., 500 F.3d 640, 643 (7th Cir. 2007) (in
determining whether a legal claim against the insured is covered by the
policy, “‘it is the actual complaint, not some hypothetical version, that
must be considered’”).
8 No. 16-1868
Furthermore, even if CSC assumed liability for damages
to other parts of the building besides the windows them-
selves, coverage for those damages would be precluded un-
der Exclusion 2.b of the policy, since the liability would then
have arisen contractually from the settlement agreement. Nor
could such liability have existed under a negligence theory
“in the absence of the contract or agreement” since, as men-
tioned earlier, Metro North’s negligence claim had already
been eliminated as an avenue of recovery before the settle-
ment occurred.
Finally, we agree with the district court that Metro North
lacks standing to sue on behalf of the individual unit owners
for damage to their personal property. Under Illinois’ Condo-
minium Property Act, a condominium association may act in
a representative capacity on behalf of the unit owners only “in
relation to matters involving the common elements or more
than one unit[.]” 765 Ill. Comp. Stat. 605/9.1(b); Poulet v.
H.F.O., L.L.C., 817 N.E.2d 1054, 1060 (Ill. App. Ct. 2004). In the
settlement, Metro North claims that it is entitled to recover (in
part) for the unit owners’ loss of personal property resulting
from water damage caused by CSC. But individual damage to
the unit owners’ privately-owned belongings is an individual
loss that affects each owner separately; it is not a collective
loss affecting multiple units or the “common elements” of the
building. Cf. Sandy Creek Condo. Ass’n v. Stolt & Egner, Inc., 642
N.E.2d 171, 175–76 (Ill. App. Ct. 1994) (condominium associ-
ation had standing to sue developer for fraudulently misrep-
resenting to unit owners that the buildings as a whole were
generally free of defects and constructed in substantial com-
pliance with the condominium plans). Accordingly, to the ex-
tent the damages identified in the settlement are premised on
the unit owners’ loss of personal property, Metro North has
No. 16-1868 9
no duty to indemnify for the additional reason that the dam-
ages do not arise from a claim on which Metro North had
standing to recover.
III. CONCLUSION
In sum, the settlement damages for which CSC incurred
liability do not fall within the coverage of Allied’s policy. Be-
cause CSC did not become legally obligated to pay any sums
to which the insurance applied, there is no duty to indemnify.
The judgment of the district court in favor of the insurers is
AFFIRMED.