Certain Underwriters at Lloyd's London v. Metropolitan Builders, Inc. , 2019 IL App (1st) 190517 ( 2020 )


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    Appellate Court                           Date: 2020.12.29
    13:11:23 -06'00'
    Certain Underwriters at Lloyd’s London v. Metropolitan Builders, Inc.,
    
    2019 IL App (1st) 190517
    Appellate Court       CERTAIN UNDERWRITERS AT LLOYD’S LONDON,
    Caption               Subscribing to Certificate No. RTS000275-4, Plaintiff-Appellee and
    Cross-Appellant, v. METROPOLITAN BUILDERS, INC., and AIG
    PROPERTY CASUALTY COMPANY, as Subrogee of 1903 Schiller,
    LLC, Defendants (Metropolitan Builders, Inc., Defendant-Appellant
    and Cross-Appellee).
    District & No.        First District, Third Division
    No. 1-19-0517
    Filed                 December 18, 2019
    Rehearing denied      January 30, 2020
    Decision Under        Appeal from the Circuit Court of Cook County, No. 18-CH-1180; the
    Review                Hon. Franklin U. Valderrama, Judge, presiding.
    Judgment              Reversed and remanded; cross-appeal dismissed.
    Counsel on            David E. Schroeder, of Tribler Orpett & Meyer, P.C., of Chicago, for
    Appeal                appellant.
    Neal R. Novak and Karen Andersen Moran, of Novak Law Offices, of
    Chicago, for appellee.
    Panel                    PRESIDING JUSTICE ELLIS delivered the judgment of the court,
    with opinion.
    Justices McBride and Cobbs concurred in the judgment and opinion.
    OPINION
    ¶1          Metropolitan Builders, Inc. (Metropolitan), appeals the circuit court’s order finding that
    Certain Underwriters at Lloyd’s London, Subscribing to Certificate No. RTS000275-4
    (Lloyd’s), did not have a duty to defend Metropolitan in an underlying case. In its order
    granting summary judgment to Lloyd’s, the court found that the complaint in the underlying
    case alleged “property damage” but did not allege an “occurrence” within the meaning of the
    insurance policy.
    ¶2          We hold that the underlying complaint alleged both an “occurrence” and “property
    damage” under the policy. Metropolitan was thus entitled to a defense from Lloyd’s of the
    underlying lawsuit. We reverse the trial court’s judgment and remand for further proceedings.
    ¶3                                           BACKGROUND
    ¶4                                           A. General Facts
    ¶5          Metropolitan was hired as the general contractor for a construction job on property in
    Chicago. During the construction, a wall adjoining two structures collapsed. The amount of
    structural damage ultimately led the City of Chicago (City) to declare the structures unsafe and
    demolish them.
    ¶6          The owner of the building turned to its insurer, AIG Property Casualty Company (AIG),
    for indemnification and reimbursement for the damages it suffered. AIG paid the owner “a
    sum of over $1,802,479.88 for repairs, demolition, construction, and other associated expenses
    arising from” the collapse.
    ¶7          AIG then invoked its rights of subrogation and filed suit against Metropolitan, the general
    contractor on the construction job (the Underlying Case). We draw our more detailed facts
    below from AIG’s complaint in that action (the Underlying Complaint).
    ¶8                                     B. The Underlying Complaint
    ¶9          Metropolitan was hired as the general contractor for “construction, renovation, demolition,
    and/or other related activities” at contiguous properties on the 1900 block of West Schiller
    Street in Chicago—the 1907 Property, 1909 Property, and 1911 Property (collectively, the
    Properties).
    ¶ 10        As of October 2016, Metropolitan had obtained a permit from the City to perform
    construction activity to convert the 1909 and 1911 Properties into single-family dwellings. But
    as of that time, the City had not given Metropolitan a permit to perform construction activity
    of any kind on the 1907 Property.
    ¶ 11        In October 2016, the structures on the 1907 Property and 1909 Property collapsed. We do
    not know a great deal about how this collapse occurred. The allegations are that Metropolitan
    had “constructed a new wooden framing building and removed portions of the stairway within
    -2-
    [the 1907 Property], without the authorization of a permit, in addition to altering the structural
    integrity and lower level supports of [the 1907 and 1909 Properties].”
    ¶ 12       In any event, the entire existing structures at the 1907 and 1909 Properties collapsed. The
    collapse caused significant damage to the Properties, “including in areas where [Metropolitan]
    was not conducting work.” The existing structures on the Properties were later deemed unsafe
    and demolished by the City.
    ¶ 13       The Underlying Complaint alleged warranty and contract claims, as well as various tort
    claims, against Metropolitan. The various tort claims each alleged that, “[a]s a result of the
    aforementioned negligence, [the property owner] suffered losses including, but not limited to,
    damage to [its] real and personal property.”
    ¶ 14                      C. The Declaratory Judgment Action Before This Court
    ¶ 15       Metropolitan tendered defense of the Underlying Case to its insurer, Lloyd’s. Lloyd’s
    denied coverage and filed this declaratory judgment action, seeking a declaration that it owed
    no duty to defend Metropolitan. In its motion for summary judgment, Lloyd’s argued that,
    while its insurance policy with Metropolitan required Lloyd’s to defend Metropolitan for
    claims of liability resulting from “property damage” caused by an “occurrence,” the allegations
    of the Underlying Complaint alleged neither “property damage” nor an “occurrence.”
    ¶ 16       The trial court disagreed in part with Lloyd’s, ruling that the Underlying Complaint
    adequately alleged “property damage.” But the court agreed that the Underlying Complaint
    failed to allege an “occurrence” as defined by the insurance policy and thus entered summary
    judgment in favor of Lloyd’s.
    ¶ 17       Metropolitan appeals, claiming that summary judgment for Lloyd’s was inappropriate, as
    the Underlying Complaint alleged an “occurrence” as well as “property damage.” Lloyd’s not
    only urges affirmance on the basis that the trial court’s ruling on the definition of “occurrence”
    was correct, but it also has cross-appealed as a backstop, arguing that summary judgment could
    be affirmed for the additional reason (contrary to the trial court’s ruling) that the Underlying
    Complaint did not allege “property damage,” either.
    ¶ 18                                          JURISDICTION
    ¶ 19        Our mention of the cross-appeal filed by Lloyd’s leads us to a jurisdictional matter that we
    have an independent duty to address, even if the parties do not. See Lakeshore Center Holdings,
    LLC v. LHC Loan, LLC, 
    2019 IL App (1st) 180576
    , ¶ 9.
    ¶ 20        Lloyd’s cross-appeals from the trial court’s ruling that the Underlying Complaint alleged
    “property damage.” That cross-appeal is improper because Lloyd’s received all the relief it
    sought below—a grant of summary judgment in its favor. A party granted summary judgment
    may not appeal that order. Chicago Tribune v. College of Du Page, 
    2017 IL App (2d) 160274
    ,
    ¶ 28 (“Where the circuit court grants summary judgment in favor of a party, that party cannot
    file a cross-appeal to seek relief from the summary judgment order.”).
    ¶ 21        We understand that Lloyd’s is cross-appealing out an abundance of caution, a belt-and-
    suspenders approach. In the event we disagreed with the trial court’s stated reason for finding
    no duty to defend—the lack of any allegation of an “occurrence”—Lloyd’s would have us
    affirm on the secondary ground that no “property damage” was alleged, even though the trial
    court ruled otherwise on that question.
    -3-
    ¶ 22       Still, the avenue of a cross-appeal is improper. “ ‘It is fundamental that the forum of courts
    of appeal should not be afforded to successful parties who may not agree with the reasons,
    conclusion or findings below.’ ” Material Service Corp. v. Department of Revenue, 
    98 Ill. 2d 382
    , 386 (1983) (quoting Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 
    414 Ill. 275
    , 282-83 (1953)). We must dismiss the cross-appeal.
    ¶ 23       But this is a pyrrhic defeat only, as Lloyd’s remains free to argue that the trial court’s order
    should be affirmed based on the definition of “property damage” as well as “occurrence.” We
    may affirm the judgment of the trial court on any basis in the record, regardless of whether it
    was the trial court’s stated reason. Material Service Corp., 98 Ill. 2d at 387. Indeed, that is
    precisely why a cross-appeal is both improper and unnecessary—because the appellee may
    raise this additional basis for affirmance on direct appeal. Id.; Chicago Tribune, 
    2017 IL App (2d) 160274
    , ¶ 28.
    ¶ 24       So the cross-appeal is dismissed, but we will consider the arguments of Lloyd’s regarding
    the definition of “property damage” as an additional basis for affirmance, if necessary.
    ¶ 25                                             ANALYSIS
    ¶ 26        Summary judgment is appropriate when “the pleadings, depositions, and admissions on
    file, together with the affidavits, if any, show that there is no genuine issue as to any material
    fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-
    1005(c) (West 2018). We review an order granting summary judgment de novo. Milwaukee
    Mutual Insurance Co. v. J.P. Larsen, Inc., 
    2011 IL App (1st) 101316
    , ¶ 7.
    ¶ 27        Generally, in determining an insurer’s duty to defend an insured in an underlying suit, we
    compare the allegations in the underlying complaint against the relevant policy language. Pekin
    Insurance Co. v. Centex Homes, 
    2017 IL App (1st) 153601
    , ¶ 34. An insurer has a duty to
    defend “[i]f the underlying complaints allege facts within or potentially within policy
    coverage.” (Emphasis in original.) United States Fidelity & Guaranty Co. v. Wilkin Insulation
    Co., 
    144 Ill. 2d 64
    , 73 (1991). This duty arises “even if the allegations are groundless, false, or
    fraudulent.” 
    Id.
    ¶ 28        We liberally construe the underlying complaint and policy in favor of the insured. 
    Id. at 74
    . “ ‘The question of coverage should not hinge on the draftsmanship skills or whims of the
    plaintiff in the underlying action.’ ” Illinois Emcasco Insurance Co. v. Northwestern National
    Casualty Co., 
    337 Ill. App. 3d 356
    , 361 (2003) (quoting International Insurance Co. v.
    Rollprint Packaging Products, Inc., 
    312 Ill. App. 3d 998
    , 1007 (2000)). The threshold an
    underlying complaint must meet to trigger the duty to defend is low. State Farm Fire &
    Casualty Co. v. Tillerson, 
    334 Ill. App. 3d 404
    , 408 (2002); Bituminous Casualty Corp. v. Gust
    K. Newberg Construction Co., 
    218 Ill. App. 3d 956
    , 960 (1991) (“minimal”). An insurer must
    defend an action “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 in original.) Wilkin, 
    144 Ill. 2d at 73
    .
    ¶ 29        We must decide both whether the Underlying Complaint alleged “property damage” within
    the meaning of the policy and whether the Underlying Complaint properly alleged that this
    property damage was caused by an “occurrence” as defined by the policy. If the answer to both
    of those questions is yes, Metropolitan is entitled to a defense under the policy. If either answer
    is no, Metropolitan is not, and summary judgment was properly entered in favor of Lloyd’s.
    -4-
    ¶ 30                                                 I
    ¶ 31        Before we dive into an analysis of the individual terms and phrases, we start with some
    general observations. Metropolitan had a commercial general liability (CGL) policy with
    Lloyd’s that, in pertinent part, insured Metropolitan for liability resulting from “ ‘property
    damage’ [that] is caused by an ‘occurrence.’ ” The relevant questions here are the meanings of
    “occurrence” and “property damage.”
    ¶ 32        We have had many occasions to interpret CGL policies in the context of underlying
    lawsuits against construction contractors, most of which policies contained identical or nearly
    identical definitions of “occurrence” and “property damage” as here. And as we will see below,
    much of our analysis in those cases has been driven less by literal textual construction and
    more by considering the overall purpose of CGL policies.
    ¶ 33        Indeed, in some cases, we have not even bothered to isolate the two definitions, instead
    considering them collectively as one phrase (“property damage caused by an occurrence”) and
    determining whether the damages alleged against the contractor in the underlying lawsuit fit
    within or outside the purpose of CGL policies. See, e.g., Acuity Insurance Co. v. 950 West
    Huron Condominium Ass’n, 
    2019 IL App (1st) 180743
    , ¶¶ 29-44. And even when the two
    definitions are isolated, some courts have used the same reasoning for determining whether an
    “occurrence” was pleaded as other courts did in determining whether “property damage” was
    pleaded.
    ¶ 34        Quite obviously, then, the purpose of CGL policies is an important first consideration. So
    we start there, with this oft-quoted passage from our supreme court:
    “ ‘[C]omprehensive general liability policies *** are intended to protect the insured
    from liability for injury or damage to the persons or property of others; they are not
    intended to pay the costs associated with repairing or replacing the insured’s defective
    work and products, which are purely economic losses. [Citations.] Finding coverage
    for the cost of replacing or repairing defective work would transform the policy into
    something akin to a performance bond.’ ” Travelers Insurance Co. v. Eljer
    Manufacturing, Inc., 
    197 Ill. 2d 278
    , 314 (2001) (quoting Qualls v. Country Mutual
    Insurance Co., 
    123 Ill. App. 3d 831
    , 833-34 (1984)).
    ¶ 35        We have often emphasized the distinction above, the difference between a CGL policy and
    a performance bond, in the case law discussing the meanings of “occurrence” and “property
    damage” in CGL policies. See, e.g., Viking Construction Management, Inc. v. Liberty Mutual
    Insurance Co., 
    358 Ill. App. 3d 34
    , 55 (2005); Tillerson, 334 Ill. App. 3d at 410; Stoneridge
    Development Co. v. Essex Insurance Co., 
    382 Ill. App. 3d 731
    , 752 (2008); Monticello
    Insurance Co. v. Wil-Freds Construction, Inc., 
    277 Ill. App. 3d 697
    , 709 (1996).
    ¶ 36        Sureties offer performance bonds to the property owner to guarantee the performance of a
    contractor’s contractual obligations on a construction project. See Fisher v. Fidelity & Deposit
    Co. of Maryland, 
    125 Ill. App. 3d 632
    , 639 (1984) (“[w]here a bond guarantees performance,
    the obligation of the contractor in legal effect becomes the obligation of the surety” (internal
    quotation marks omitted)). If the contractor fails to complete the project or performs in a
    substandard manner, the property owner can sue or demand performance directly from the
    surety, either by requiring the surety to complete the work in a timely and acceptable manner
    or by making the surety pay any excess costs incurred by the property owner to complete the
    work itself. See id.; see also Lake View Trust & Savings Bank v. Filmore Construction Co., 
    74 Ill. App. 3d 755
    , 758 (1979).
    -5-
    ¶ 37       The difference, however, is if the surety were made to pay or perform on the performance
    bond, the surety could then sue the contractor for recovery for defective construction work.
    See Stoneridge, 382 Ill. App. 3d at 752; Wil-Freds, 277 Ill. App. 3d at 709. The surety on a
    performance bond, then, is not an “insurer” of the contractor in the classic sense. It guarantees
    the contractor’s performance to a third party (the property owner), but it can turn around and
    seek recovery against that contractor for any moneys it was forced to pay due to the contractor’s
    breach of contract.
    ¶ 38       Contrast performance bonds with a more traditional insurance contract like a CGL policy.
    For one thing, the CGL insurer cannot sue the insured contractor to recoup money it paid on
    its behalf. Stoneridge, 382 Ill. App. 3d at 752; Wil-Freds, 277 Ill. App. 3d at 709. If a CGL
    policy covered simple economic loss stemming from a contractor’s breach of contractual
    obligations, the contractor would be paid initially by the property owner to perform the
    (shoddy) work and then would get paid by the insurance company to repair or replace that
    (shoddy) work product, in essence an unfair and inappropriate double recovery—and a reward
    for poor performance. See Stoneridge, 382 Ill. App. 3d at 752; Wil-Freds, 277 Ill. App. 3d at
    709.
    ¶ 39       Another and more fundamental difference is that the CGL insurer is not guaranteeing the
    contractual performance of work; instead, as our supreme court noted, a CGL policy “protect[s]
    the insured from liability for injury or damage to the persons or property of others.” (Internal
    quotation marks omitted.) Travelers Insurance, 
    197 Ill. 2d at 314
    . That is to say, it covers
    “ ‘tort liability for damage to other property, not for the insured’s contractual liability for
    economic loss.’ ” (Emphasis added.) Stoneridge, 382 Ill. App. 3d at 753 (quoting Tillerson,
    334 Ill. App. 3d at 410); see also Viking Construction, 358 Ill. App. 3d at 42 (“It has generally
    been held that a CGL policy will not cover a general contractor’s suit for breach of contract
    ***.” (Internal quotation marks omitted.)).
    ¶ 40       As we will see below, this distinction between damage to other property, usually redressed
    in tort, and purely economic loss or disappointed expectations, typically remedied in a contract
    claim, has served as the guiding principle in determining the definitions of both “occurrence”
    and “property damage” in CGL polices involving lawsuits against insured contractors.
    ¶ 41                                                  II
    ¶ 42       We begin with Metropolitan’s claim that the trial court erred in ruling that the Underlying
    Complaint did not adequately allege an “occurrence” as defined in Metropolitan’s CGL policy
    with Lloyd’s (the Policy). Again, the Policy insured Metropolitan against liability for
    “ ‘property damage’ [that] is caused by an ‘occurrence.’ ”
    ¶ 43       An “occurrence” under the Policy is “an accident, including continuous or repeated
    exposure to substantially the same general harmful conditions.” Because we are not talking
    here about any kind of continuous-exposure harm like radon radiation, asbestos exposure, or
    lead poisoning, we can eliminate the second portion of the definition here and say that the
    Policy defines an “occurrence” as an “accident.”
    ¶ 44       But the Policy contains no definition of “accident.” That seems to be a common feature of
    CGL policies, defining an “occurrence” as did the Policy here and omitting any corresponding
    definition of “accident.” See, e.g., Acuity Insurance, 
    2019 IL App (1st) 180743
    , ¶ 10 (identical
    definition of “occurrence” with no definition of “accident”); J.P. Larsen, 2011 IL App (1st)
    -6-
    101316, ¶ 25 (same); Stoneridge, 382 Ill. App. 3d at 749 (same); Viking Construction, 358 Ill.
    App. 3d at 37 (same).
    ¶ 45       In the absence of a policy definition, Illinois courts typically interpret “accident” to mean
    “ ‘an unforeseen occurrence, usually of an untoward or disastrous character or an undesigned,
    sudden, or unexpected event of an inflictive or unfortunate character.’ ” Stoneridge, 382 Ill.
    App. 3d at 749 (quoting Westfield National Insurance Co. v. Continental Community Bank &
    Trust Co., 
    346 Ill. App. 3d 113
    , 117 (2003)); see also id. at 749-50 (collecting cases).
    ¶ 46       Reading that definition alone, one might think that what constitutes an “accident” (and thus
    an “occurrence”) would depend on what happened and how it happened—whether the event
    was sudden, unexpected, etc. But as previewed above, the case law has focused at least as
    much on the purposes of CGL policies as it has on textual interpretation and application.
    ¶ 47       We have held, for example, that because CGL policies are “not intended to pay the costs
    associated with repairing or replacing the insured’s defective work and products” (internal
    quotation marks omitted) (Travelers Insurance, 
    197 Ill. 2d at 314
    ), a lawsuit alleging only
    those damages against the insured contractor is not deemed to be alleging damages resulting
    from an “accident,” and thus no “occurrence” has been pleaded to trigger coverage under the
    CGL policy. As our supreme court has said and we have reiterated, a CGL policy “ ‘ “does not
    cover an accident of faulty workmanship but rather faulty workmanship which causes an
    accident.” ’ ” Acuity Insurance, 
    2019 IL App (1st) 180743
    , ¶ 26 (quoting Pekin Insurance Co.
    v. Richard Marker Associates, Inc., 
    289 Ill. App. 3d 819
    , 823 (1997), quoting Western Casualty
    & Surety Co. v. Brochu, 
    105 Ill. 2d 486
    , 498 (1985)).
    ¶ 48       Simply put, “ ‘there is no occurrence when a subcontractor’s defective workmanship
    necessitates removing and repairing work.’ ” (Internal quotation marks omitted.) J.P. Larsen,
    
    2011 IL App (1st) 101316
    , ¶ 26 (quoting Viking Construction, 358 Ill. App. 3d at 42). Rather,
    the mere repair or replacement of a contractor’s poor work product is considered to be the
    “ ‘natural and ordinary consequences of faulty workmanship,’ ” not an “ ‘accident.’ ” Acuity
    Insurance, 
    2019 IL App (1st) 180743
    , ¶ 28 (quoting Tillerson, 334 Ill. App. 3d at 409); Wil-
    Freds, 277 Ill. App. 3d at 705; Indiana Insurance Co. v. Hydra Corp., 
    245 Ill. App. 3d 926
    ,
    930 (1993) (“The natural and ordinary consequences of an act do not constitute an accident.”).
    ¶ 49       For example, if windows were improperly sealed and thus leaked water, the mere cost of
    repairing and replacing those windows would not be deemed the result of an “accident,” and
    thus no “occurrence” would be alleged under the CGL policy. See J.P. Larsen, 
    2011 IL App (1st) 101316
    , ¶¶ 27-28. So, too, if a school’s wall collapsed but the only damages alleged were
    the cost of repair or replacement of that wall, without any claim of damages to other parts of
    that school; the damage is not deemed to be the result of an “accident” or “occurrence” under
    the CGL policy. See Viking Construction, 358 Ill. App. 3d at 42, 55.
    ¶ 50       Likewise, a building owner’s lawsuit against a contractor for the cost of repairing cracks
    in the flooring and loose paint on the walls did not constitute damages resulting from an
    “accident” or “occurrence” under the contractor’s CGL policy, as the floor cracks and loose
    paint were merely “the natural and ordinary consequences of installing defective concrete
    flooring and applying the wrong type of paint.” Hydra Corp., 245 Ill. App. 3d at 930. A lawsuit
    against an insured contractor, alleging that the house the contractor built had an unstable
    foundation due to the contractor’s failure to compact the soil beneath the foundation, did not
    allege an “occurrence” under the CGL policy because the cracks that formed were the mere
    -7-
    natural and ordinary result of faulty soil compaction and the damage was merely to the house
    itself—the contractor’s work product. Stoneridge, 382 Ill. App. 3d at 753.
    ¶ 51       This principle has been extended to situations where other parts of the same construction
    project, over which the insured contractor had responsibility, are also damaged. In that
    situation, as well, the damage is not deemed to be the result of an “accident” or “occurrence”
    but, rather, the natural and ordinary consequence of faulty workmanship. For example, if leaky
    windows led to water damage in other parts of the same structure that the insured contractor
    was building and over which that contractor had responsibility—the lobby, the basement, an
    adjoining building—the damage is not deemed to be the result of an “accident.” See Wil-Freds,
    277 Ill. App. 3d at 705. The reasoning is the same: the areas that were damaged were part of
    the same construction project and part of that contractor’s overall responsibility; the work was
    allegedly done in a poor manner; the cost of repairing or replacing shoddy work is an ordinary
    and natural consequence of poor workmanship.
    ¶ 52       On the other hand, recall our supreme court’s reminder that the purpose of a CGL policy
    is to protect the insured “from liability for injury or damage to the persons or property of
    others.” (Internal quotation marks omitted.) Travelers Insurance, 
    197 Ill. 2d at 314
    . Thus, we
    have been careful to emphasize that when the underlying lawsuit against the insured contractor
    alleges damages beyond repair and replacement, and beyond damage to other parts of the same
    project over which that contractor was responsible, those additional damages are deemed to be
    the result of an “accident.” See Acuity Insurance, 
    2019 IL App (1st) 180743
    , ¶ 29 (“[w]e have
    repeatedly recognized that while a CGL policy will not insure a contractor for the cost of
    correcting construction defects, ‘damage to something other than the project itself does
    constitute an “occurrence” under a CGL policy’ ” (emphasis in original) (quoting J.P. Larsen,
    
    2011 IL App (1st) 101316
    , ¶ 27)).
    ¶ 53       So while the repair or replacement of defective plumbing is not deemed to be damages
    resulting from an “accident,” allegations of water damage to a homeowner’s furniture,
    clothing, and antiques would trigger coverage under a CGL policy because that damage
    extends beyond the contractor’s work product to the homeowner’s personal property. Richard
    Marker, 289 Ill. App. 3d at 823.
    ¶ 54       As another example cited by the parties, the cost of repairing or replacing a poorly built
    second-story structure over an existing garage does not trigger coverage under the CGL policy,
    but damage to the garage below it, which was not part of the contractor’s work, would be
    covered. See Ohio Casualty Insurance Co. v. Bazzi Construction Co., 
    815 F.2d 1146
    , 1148-49
    (7th Cir. 1987) (applying Illinois law and stating, “[h]ad Bazzi contracted to construct an
    entirely new building for [the owner], any damage to or defects in that building, which would
    be defined as the property or work product of Bazzi, would not be covered under the policy,”
    but “[b]ecause [the owner’s] complaint alleges damage to property other than Bazzi’s own
    work or product, namely the structure of the existing garage, *** the [underlying complaint]
    states a claim for property damage that is potentially within the coverage of the [CGL] policy”
    (emphasis added)).
    ¶ 55       Likewise, water leakage caused by poorly insulated windows, which damages other parts
    of the same structure the contractor erected, are not covered—it would be part of the repair and
    replacement for shoddy workmanship—but had the water leakage damaged homeowners’ cars
    parked inside the parking garage, we had “little doubt” that such damage to personal property
    -8-
    would have been deemed to have resulted from an “accident” under the CGL policy. Wil-
    Freds, 277 Ill. App. 3d at 705.
    ¶ 56       The upshot is that, in cases involving CGL policies with a definition of “occurrence”
    identical or functionally identical to the one here, the rule is as follows: If the underlying
    complaint against the insured contractor merely alleges construction defects that require repair
    and replacement (or that cause a diminution in value) of the contractor’s work product, no
    “accident,” and thus no “occurrence” under the CGL policy, has been alleged. But if the
    damage extends to other people or things that were not part of the contractor’s work product,
    we have held that this damage is alleged to have resulted from an “accident,” and thus an
    “occurrence” has been alleged to trigger coverage under the CGL policy.
    ¶ 57                                                   III
    ¶ 58       We turn now to the meaning of “property damage” under the Policy. The Policy defines
    “property damage” in relevant part as “physical injury to tangible property, including all
    resulting loss of use of that property.” Our supreme court has explained that:
    “[T]o the average, ordinary person, tangible property suffers a ‘physical’ injury when
    the property is altered in appearance, shape, color or in other material dimension.
    Conversely, to the average mind, tangible property does not experience ‘physical’
    injury if that property suffers intangible damage, such as diminution in value as a result
    from the failure of a component ***.” Travelers Insurance, 
    197 Ill. 2d at 301-02
    .
    ¶ 59       Determining whether property is “altered in appearance, shape, color or in other material
    dimension” (id. at 301) is easy enough. But that determination is not enough by itself. As we
    noted at the outset, beyond the mere textual meaning of the phrase, many of the same
    considerations that drive the definition of “occurrence” have led courts to reach the same
    conclusions with regard to the presence or absence of allegations of “property damage,” at
    least in cases where the definition of “property damage” mirrored the one here.
    ¶ 60       That is to say, when the “property” that is alleged to be “damaged” in the underlying
    lawsuit against the construction contractor is merely the contractor’s work product, then in
    essence the only damage is the disappointed commercial expectations of the property owner,
    and the damages alleged are purely economic losses for the cost of repair and replacement of
    the contractor’s work product or for the property’s diminution in value. In those instances, we
    have held that no “property damage” was alleged to trigger coverage under the CGL policy.
    ¶ 61       For example, when we held that the homeowners’ lawsuit against a contractor for building
    the house on an unstable foundation did not allege an “occurrence” because the resulting cracks
    in the contractor’s work product were the natural and ordinary consequence of poor
    workmanship, we also held that the cracks that developed in the home did not constitute
    “property damage” under the CGL policy. Stoneridge, 382 Ill. App. 3d at 753. Even though
    the cracks obviously constituted an alteration in the house’s appearance, we held that the
    homeowners were alleging purely economic losses for repair, replacement, and diminution in
    value of the home. Id.
    ¶ 62       We reached the same decision, on nearly the same facts, in Tillerson, 334 Ill. App. 3d at
    409, where homeowners sued the insured contractor for building an addition to a house on an
    uneven foundation, resulting in the addition being uninhabitable. We found no “accident” and
    thus no “occurrence” under the contractor’s CGL policy because the damage to the contractor’s
    -9-
    work product was just the natural result of defective workmanship (id.), but we also found that
    the damage to the house was not “property damage,” as the homeowners “merely [sought]
    either the repair or the replacement of defective work or the diminishing value of the home,”
    which we deemed “economic loss” only (id. at 410).
    ¶ 63       Likewise, when we determined that the collapse of a masonry wall at a middle school did
    not constitute an “accident” or “occurrence” under the contractor’s CGL policy because the
    only damages alleged were the cost of repair and replacement of that wall, we likewise held
    that the collapsed wall did not constitute “property damage” under the policy. Viking
    Construction, 358 Ill. App. 3d at 55. Much as we did in interpreting the word “occurrence,”
    we reasoned that CGL policies are not intended to cover purely economic loss for the repair or
    replacement of defective work, and interpreting them in that manner would have the effect of
    converting CGL policies into performance bonds. Id. Thus, though it was beyond obvious that
    the masonry wall had been altered in appearance—it went from a standing wall to a rubble of
    bricks—it was not “property damage” because the replacement costs were purely economic
    contractual damages. Id. at 55-56.
    ¶ 64       Along those same lines, when we have found that damages from a contractor’s defective
    work were alleged to have resulted from an “occurrence,” we have relied on much of the same
    reasoning for determining that “property damage” was alleged, as well. In Acuity Insurance,
    
    2019 IL App (1st) 180743
    , ¶ 7, the underlying complaint alleged that a subcontractor’s faulty
    installation and caulking of doors and windows in a segregated portion of a condo building
    resulted in water damage throughout the building. Because the subcontractor had only this
    particular responsibility on a preexisting building, we held that damage to other parts of that
    building, completely unrelated to the scope of the subcontractor’s isolated work, constituted
    damage to something other than the project itself, requiring something more than mere repair
    and replacement of the subcontractor’s work product, and thus was the result of an “accident”
    or “occurrence” under the CGL policy. Id. ¶¶ 29, 44. And for the same reason, we found that
    this damage to other parts of the building constituted “property damage” under the policy. Id.
    ¶ 65       The prevailing rule, then, is that to constitute “property damage” in these CGL policies
    with definitions like the one here, the property’s appearance must be altered in some
    measurable way, but it must also be property beyond that of the contractor’s work product. If
    the only property injured is the very project on which the contractor was working—the
    windows it installed or sealed, the wall it built, the house it erected—then the damages sought
    are merely economic losses stemming from disappointed commercial expectations. They are
    contractual damages for the cost of repair or replacement or to make the property owner whole
    for the diminution in the property’s value. And such damages are not recoverable in a CGL
    policy. But again, allegations of damage to property other than the project itself, requiring more
    than mere repair or replacement, constitute “proper damage” under the CGL policy.
    ¶ 66                                                IV
    ¶ 67       As mentioned at the outset and as shown above, there is considerable overlap between the
    analyses of the definition of “occurrence” and that of “property damage,” at least with regard
    to the standard definitions of those terms found in the CGL policies in those cases, which are
    the same or substantively identical to the ones in our case. While it may seem curious that
    essentially the same analysis underlies the definitions of two very different phrases—
    “occurrence” and “property damage”—the case law has been, if nothing else, consistent in this
    - 10 -
    analysis. Whatever we may think of the merging of these analyses, we are not inclined to swim
    against a tidal wave of decisions on this subject, only some of which we have cited in this
    opinion. The case law is too settled and consistent to depart from it.
    ¶ 68       But we would be remiss not to add one caveat, which should be obvious: Not all insurance
    contracts are the same and presumably not all CGL policies are, either. However helpful
    general discussions about the purposes of CGL policies may be, the language of the insurance
    policy should always be the primary focus when construing an insurance policy. The words
    the parties choose are the words that bind them, and the words a court should interpret and
    enforce. A future CGL policy might have very different language that might compel different
    interpretations and maybe different outcomes.
    ¶ 69       Here, however, the cases we have cited above all considered definitions of “occurrence”
    and “property damage” in CGL policies that are identical to, or so nearly so as to be
    indistinguishable from, the definitions in the Policy here. So we will follow the abundant case
    law that has developed regarding these definitions, with the caveat that no court should blindly
    adhere to this precedent without first comparing the relevant language in an insurance policy
    with the ones in the cases we have cited, including this opinion.
    ¶ 70                                                  V
    ¶ 71       We now analyze the allegations in the Underlying Complaint to determine whether they
    allege “property damage” that was caused by an “occurrence.”
    ¶ 72       A brief reminder of the Underlying Complaint’s allegations, which AIG brought as
    subrogee of the property owner: The owner of the 1907, 1909, and 1911 Properties hired
    Metropolitan “as general contractor for renovation, demolition, construction, and/or other
    related activities,” the point being the conversion of (some or all of) the existing structures on
    the Property into single-family dwellings. In the course of conducting construction activities,
    Metropolitan built a new wooden framing building and removed portions of the stairway inside
    the 1907 Property. Metropolitan’s defective construction work resulted in altering the
    structural integrity and lower level supports of both the 1907 and 1909 Properties, causing their
    collapse. As a result, all three of the buildings on the Properties were demolished by the City,
    which deemed them unsafe.
    ¶ 73       AIG has paid the property owner “a sum of over $1,802,479.88 for damage to the real
    property, repairs, demolition, construction, and other associated expenses arising from the
    [collapse of the buildings].”
    ¶ 74       The Underlying Complaint, among other things, raises several theories of recovery
    sounding in tort. In each of those counts, the Underlying Complaint alleges two different kinds
    of damages suffered by the property owner: “losses including, but not limited to, damage to
    both [the property owner’s] real and personal property.”
    ¶ 75       We readily agree with Lloyd’s that the damage to the real property is not covered by the
    CGL policy. Metropolitan was the general contractor on the job, with overall responsibility for
    the renovation and conversion of the Properties’ existing structures into single-family housing.
    Instead of rehabbing and converting them, Metropolitan’s allegedly faulty workmanship led to
    their collapse and ultimate demolition. Thus, the collapse of the structures was not an
    “accident” or “occurrence” but was, instead, the natural and ordinary result of faulty
    workmanship on the contractor’s work product. See, e.g., Viking Construction, 358 Ill. App.
    - 11 -
    3d at 42; Stoneridge, 382 Ill. App. 3d at 753; Hydra Corp., 245 Ill. App. 3d at 930; Wil-Freds,
    277 Ill. App. 3d at 705.
    ¶ 76       For many of the same reasons, the damage to the real property did not constitute “property
    damage” under the Policy, either. The damages suffered by the property owner (as to the real
    property) was nothing but economic loss—the cost of repair and replacing the demolished
    buildings to fulfill the owner’s contractual expectations of Metropolitan to build single-family
    dwellings. See, e.g., Stoneridge, 382 Ill. App. 3d at 753; Tillerson, 334 Ill. App. 3d at 410;
    Viking Construction, 358 Ill. App. 3d at 55-56.
    ¶ 77       Metropolitan argues that the Underlying Complaint alleged damage to parts of the Property
    on which Metropolitan was not working. So it did, but that does not change our conclusion.
    The Properties were under the responsibility of Metropolitan, as general contractor, to convert
    the structures into single-family homes. Even if the damage extended to parts of the project on
    which Metropolitan was not currently working, it was still part of Metropolitan’s scope and
    responsibility, and thus was part of the project itself. See Wil-Freds, 277 Ill. App. 3d at 705.
    ¶ 78       We reach a different conclusion, however, with regard to the second claim of damages
    alleged in the Underlying Complaint—the claim of damage to the property owner’s “personal
    property.” As we have explained, when a construction defect results in “ ‘damage to something
    other than the project itself,’ ” the damages are deemed to have been the result of an “accident”
    and thus an “occurrence” under the CGL policy. Acuity Insurance, 
    2019 IL App (1st) 180743
    ,
    ¶ 29 (quoting J.P. Larsen, 
    2011 IL App (1st) 101316
    , ¶ 27); see also Richard Marker, 289 Ill.
    App. 3d at 823; Bazzi Construction, 
    815 F.2d at 1148-49
    ; Wil-Freds, 277 Ill. App. 3d at 705.
    ¶ 79       The damage alleged to the property owner’s personal property is, quite obviously, damage
    to something other than the project itself. To be sure, the Underlying Complaint gives no
    description whatsoever of what “personal property” of the owner was damaged—furniture,
    computers, appliances, keepsakes, etc. We do not know anything about these buildings on the
    Property before Metropolitan began renovation—whether they were office buildings, personal
    residences of some sort, or what have you. We have no clue whatsoever about this alleged
    damage to the owner’s personal property.
    ¶ 80       It is the unspecified nature of that personal property, in fact, that leads Lloyd’s to argue
    that no damage to personal property has been alleged whatsoever. Lloyd’s says that this “free-
    standing reference” to personal property, without any reference to the type or nature of the
    personal property, is insufficient.
    ¶ 81       We disagree for two reasons. The first is that, while we may not know much about this
    personal property, we do know to whom it belonged—the property owner. That, in itself,
    distinguishes this case from Westfield Insurance Co. v. West Van Buren, LLC, 
    2016 IL App (1st) 140862
    , ¶ 20, cited by Lloyd’s, where the “personal property” alleged to be damaged was
    not the building owner’s, leaving the majority to question how the building owner even had
    the right to sue for such damages. Here, in contrast, the property owner unquestionably has the
    right to sue for injury to its own personal property.
    ¶ 82       More to the point, we have specifically rejected the notion that the alleged damage to
    “personal property” must be specifically identified in the underlying complaint to trigger
    coverage for an “occurrence.” See J.P. Larsen, 
    2011 IL App (1st) 101316
    , ¶ 20 (“Although the
    damages to the common elements, individual units and personal property were not expressly
    described, we must construe the pleadings liberally to allow for coverage, or, at least, the
    potential for coverage.”). Recall that, in considering whether an insurer has a duty to defend,
    - 12 -
    we read the underlying complaint and the insurance policy in favor of coverage “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
    . It is certainly not “clear” from the Underlying Complaint that the allegation
    of damage to the owner’s personal property falls outside the definition of “occurrence.”
    ¶ 83       Lloyd’s also argues that the Underlying Complaint could not be alleging damage to the
    owner’s personal property because it does not allege that AIG paid the owner for any damage
    to personal property and, as the subrogee stepping into the shoes of the owner, AIG can only
    recover from the contractor the money that it paid out in claims to the owner. Simply put, if
    AIG did not pay the owner any money in claims for damage to personal property, then it cannot
    seek damages in the Underlying Complaint for damage to the owner’s personal property.
    ¶ 84       Again, we agree that the Underlying Complaint is somewhat vague on this point, but it is
    sufficient under the lenient standard we must apply. It is not “clear from the face of the
    underlying complaint” (id.) that AIG did not cover claims of damage to the owner’s personal
    property. For one thing, we have no idea what AIG’s policy with the owner did or did not
    cover; the policy was not attached to the Underlying Complaint. One would think that a policy
    insuring an owner’s home or building would include some provision for the contents, too—the
    personal property within the structure. But the fact remains that we do not know, and if we
    were to assume (somewhat against reason) that AIG’s policy did not cover personal property,
    we would not be interpreting the Underlying Complaint liberally in favor of coverage; we
    would be doing the precise opposite.
    ¶ 85       And the relevant allegations in the Underlying Complaint, at a minimum, do not foreclose
    the possibility that AIG paid the owner for damage to personal property. In the provision cited
    by Lloyd’s, AIG alleged that it has paid the owner “a sum of over $1,802,479.88 for damage
    to the real property, repairs, demolition, construction, and other associated expenses” arising
    from the collapse of the buildings. It does not explain what “other associated expenses” means.
    We see no reason why that could not include payment for damage to the owner’s personal
    property. Maybe the amount of personal property damage, compared to the massive cost of
    rebuilding three structures from scratch, was minor enough to warrant only a mention in wrap-
    up language like “other associated expenses.” A liberal reading surely would not exclude that
    possibility.
    ¶ 86       And each count of the Underlying Complaint specifically alleges damage to the owner’s
    personal, as well as real, property. One might ask why AIG would seek damages for the
    owner’s personal property loss if AIG was not prepared to prove (as it would be required to
    do) that it first paid out money on personal-property claims. Unless we were to assume that
    AIG was filing a frivolous pleading, then, we would assume that AIG is seeking damages for
    the owner’s personal property because it paid out on those claims to the owner. And at this
    stage, under this lenient standard, we are not permitted to inquire into whether the underlying
    allegations are frivolous. See 
    id.
     (duty to defend arises “even if the allegations are groundless,
    false, or fraudulent”).
    ¶ 87       Thus, however vague they may be, the Underlying Complaint’s allegations at least
    potentially satisfy the Policy’s definition of “occurrence.”
    ¶ 88       And because the damage to the owner’s personal property is beyond a mere contractual-
    damages claim for repair or replacement of the contractor’s work product, it likewise
    - 13 -
    constitutes “property damage” under the Policy. See, e.g., Bazzi Construction, 
    815 F.2d at 1148-49
    ; Acuity Insurance, 
    2019 IL App (1st) 180743
    , ¶ 29.
    ¶ 89       In sum, these admittedly vague references to damage to the property owner’s “personal
    property” are enough to allege “property damage” caused by an “occurrence” under the Policy.
    The allegations are enough to trigger the insurer’s duty to defend.
    ¶ 90       If the insured is entitled to a defense of any portion of an underlying complaint, the insured
    is entitled to a defense of that entire lawsuit. Pekin Insurance Co. v. Wilson, 
    237 Ill. 2d 446
    ,
    453 n.2 (2010) (“if [the insurer] has a duty to defend as to at least one count of the lawsuit, it
    has a duty to defend in all counts of that lawsuit”); Wilkin, 
    144 Ill. 2d at 73
     (“if 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”). So even though
    the vast majority of the damages alleged in the Underlying Complaint appear to relate to
    noncovered damages to the real property and the project itself, the allegations of damage to the
    owner’s “personal property” triggers the insurer’s duty to defend the entire action. And for that
    same reason, we need not consider the contract claims in the Underlying Complaint, for the
    tort claims alone are sufficient to trigger the duty to defend.
    ¶ 91       We express no opinion on any duty on the part of Lloyd’s to indemnify Metropolitan. That
    question is not before us. We hold only that the Underlying Complaint alleges sufficient facts
    to require Lloyd’s to defend Metropolitan. The trial court thus erred in granting summary
    judgment in favor of Lloyd’s.
    ¶ 92                                        CONCLUSION
    ¶ 93      The judgment of the trial court is reversed. The cause is remanded for further proceedings
    consistent with this opinion. The cross-appeal is dismissed.
    ¶ 94      Reversed and remanded; cross-appeal dismissed.
    - 14 -