Zurich American Insurance Co. v. Infrastructure Engineering, Inc. , 2023 IL App (1st) 230147 ( 2023 )

2023 IL App (1st) 230147FIRST DISTRICT
SECOND DIVISION
October 24, 2023
No. 1-23-0147
ZURICH AMERICAN INSURANCE COMPANY, ) Appeal from the Circuit Court of
Subrogee of Community College ) Cook County.
District No. 508, d/b/a City Colleges )
of Chicago and CMO, a Joint Venture, )
)
Plaintiff-Appellant, ) No. 16 L 12712
)
v. )
)
INFRASTRUCTURE ENGINEERING, INC., )
) Honorable Patrick J. Sherlock,
Defendant-Appellee. ) Judge Presiding
PRESIDING JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Zurich American Insurance Company (Zurich), issued a builder’s risk insurance
policy to insure a building during its construction. Defendant Infrastructure Engineering, Inc.
(Infrastructure Engineering), was a subcontractor on the construction project who was hired to
install a system for collecting rainwater. A rainstorm occurred while the building was still under
construction, and the basement of the building flooded, causing significant damage. Plaintiff paid
out a claim to CMO, the general contractor, in accordance with the policy it issued. Plaintiff, as
subrogee of CMO and the owner, a community college, then sued defendant, alleging defendant
caused the water damage. Defendant moved for summary judgment, arguing that plaintiff was
not entitled to subrogate for the building owner. The trial court agreed, and it granted judgment
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in defendant’s favor. Plaintiff now appeals, arguing that the insurance policy entitles it to a right
of subrogation. For the following reasons, we reverse and remand for further proceedings.
¶2 BACKGROUND
¶3 City Colleges of Chicago (City Colleges) owns and operates Malcom X College. When
City Colleges decided to construct a new academic building at Malcom X College, it contracted
with a general contractor, CMO. CMO agreed to serve as the general contractor for the
construction of the new academic building, providing all necessary labor, material, and
equipment to complete the project. The contract between CMO and City Colleges required CMO
to purchase and maintain a builder’s risk property insurance policy during the period of
construction.
¶4 CMO purchased the builder’s risk policy from plaintiff Zurich. The “named insured” in
the policy is CMO, and City Colleges is named as an “additional named insured.” Under the
policy, CMO was deemed to be the agent for all the other entities insured thereunder.
“[CMO] shall be deemed the sole and irrevocable agent of each and every Insured
hereunder for the purpose of giving and receiving notices to/from the Company,
giving instruction to or agreeing with the Company as respects Policy alteration,
for making or receiving payments of premium or adjustments to premium, and as
respects the payment for claims.”
The insurance policy also gives Zurich, as the insurer, a right of subrogation for any
claims it might pay under the policy.
“If [Zurich] pays a claim under this Policy, they will be subrogated, to the extent
of such payment, to all the Insured’s rights of recovery from other persons,
organizations and entities.
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***
It is a condition of this Policy that [Zurich] shall be subrogated to all the Insured’s
unwaived rights of recovery, if any, against any third party Architect or Engineer,
whether named as an Insured or not, for any loss or damage arising out of the
performance of professional services in their capacity as such and caused by any
error, omission, deficiency or act of the third party Architect or Engineer, by any
person employed by them or by any others for whose acts they are legally liable.”
¶5 On August 17, 2015, while the construction project was ongoing, there was a rainstorm.
The stormwater detention system designed by Infrastructure Engineering was not fully installed
at the time of the storm. The basement of the academic building flooded. There was damage to
the building itself and to its electrical and mechanical equipment. CMO submitted a claim to
Zurich for the damage that resulted from the flooding. Zurich made claim payments to CMO
totaling $2,998,929.35.
¶6 Zurich filed this case against Infrastructure Engineering, as subrogee of City Colleges
and CMO. Zurich alleges that Infrastructure Engineering designed a defective stormwater
management system which caused the loss at the construction site. Zurich contends that it is
entitled to stand in the shoes of City Colleges as a result of making the claim payments under the
builder’s risk policy.
¶7 Infrastructure Engineering filed an initial motion for summary judgment that was denied
and is not at issue in this appeal. Infrastructure Engineering subsequently filed a second motion
for summary judgment, which is the matter at issue in this appeal. In its second motion for
summary judgment, Infrastructure Engineering argued that it was entitled to a judgment of no
liability because neither of Zurich’s alleged subrogors, CMO or City Colleges, were third-party
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beneficiaries of the subcontract between Infrastructure Engineering and Moody Nolan.
Infrastructure Engineering argued that while the contract between Moody Nolan and City
Colleges provides that City Colleges is a third-party beneficiary of any subcontract between
Moody Nolan and its subcontractors, the subcontract between Moody Nolan and Infrastructure
Engineering provides that “Nothing contained in this Agreement shall create a contractual
relationship with, or a cause of action in favor of, a third party against either the [Moody Nolan]
or [Infrastructure Engineering].”
¶8 Infrastructure Engineering further argued in support of its second motion for summary
judgment that Zurich could not establish the necessary elements to entitle it to a right of
subrogation because there was no contractual relationship between CMO and Infrastructure
Engineering and because City Colleges suffered no loss and received no loss payment under the
insurance policy. Infrastructure Engineering cited State Farm General Insurance Co. v. Stewart,
288 Ill. App. 3d 678, 686-87 (1997) to point out that
“the prerequisites to a subrogation claim are: (1) a third party must be primarily liable to
the insured for the loss; (2) the insurer must be secondarily liable to the insured for loss
under an insurance policy; and (3) the insurer must have paid the insured under that
policy, thereby extinguishing the debt of the third party.”
Infrastructure Engineering argued that Zurich “cannot establish the third element of a
subrogation claim: namely, that it paid City Colleges under the Builders Risk Policy.”
¶9 Zurich responded to the motion for summary judgment and acknowledged it was required
to show that City Colleges was a third-party beneficiary of the contract between Moody Nolan
and Infrastructure Engineering. Zurich also acknowledged that it was required to show that “it is
subrogated to City Colleges’ rights of recovery.” Zurich maintained in its response to the
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summary judgment motion that City Colleges was a third-party beneficiary of the subcontract
based on the language used in the relevant contracts. Zurich further maintained in its response
that “the unambiguous subrogation provision in [its] policy shows that [Zurich] is contractually
subrogated to City Colleges’ rights of recovery.”
¶ 10 In connection with its argument that it was entitled to stand in the shoes of City Colleges,
Zurich cited our decision in Trogub v. Robinson, 366 Ill. App. 3d 838, 842 (2006), and stated
that
“[t]he prerequisites to subrogation are: (1) a third party must be primarily liable to the
insured for the loss; (2) the insurer must be secondarily liable to the insured for the loss
under an insurance policy; and (3) the insurer must have paid the insured under that
policy, thereby extinguishing the debt of the third party.”
Zurich went on to cite authority for the proposition that the policy provisions should control the
right to subrogation and the black-letter law explaining the objective of contract interpretation.
Zurich then quoted the subrogation provision from the applicable policy and stated that “[b]ased
on that provision, [Zurich] is subrogated to City Colleges’ rights of recovery.” Zurich contended
that Infrastructure Engineering was improperly focusing on whether City Colleges received any
claim payments under the policy instead of analyzing the subrogation provision in the policy
itself. Zurich concluded that, “[u]nder the unambiguous terms of the Policy, [Zurich], to the
extent of its claim payments, is subrogated to City Colleges’ rights of recovery because City
Colleges is an insured under the Policy.”
¶ 11 The trial court held a hearing on Infrastructure Engineering’s second motion for summary
judgment. During the hearing, the trial court asked the parties whether they were aware of any
case law addressing the scenario where there are multiple insureds under an insurance policy and
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payment was made to an insured who was not the ultimate subrogor in the lawsuit. Neither party
was aware of such authority, so the trial court ordered the parties to provide supplemental
briefing on the issue.
¶ 12 Infrastructure Engineering submitted its supplemental briefing, alerting the trial court to a
case from New York which it argued supported its position on the motion for summary
judgment. Zurich, however, used the opportunity to draw a clear distinction between contractual
or conventional subrogation and equitable subrogation. Zurich argued in its supplemental
briefing that it was not required to establish the requirements for equitable subrogation because
the contracts in the case controlled the issue. Zurich provided the trial court with authority in
support of its contractual or conventional subrogation argument.
¶ 13 The trial court granted Infrastructure Engineering’s motion for summary judgment. In a
written order, the trial court found that City Colleges was a third-party beneficiary of the
subcontract between Moody Nolan and Infrastructure Engineering. However, the trial court
found that Zurich had “not shown it is subrogated to [City Colleges’] rights of recovery.” The
trial court set forth the same three prerequisites for subrogation that Zurich set out in its response
brief and found that Zurich “fails to satisfy the elements of subrogation.” The trial court
expressly noted that the requirements it recited came from “the case cited by [Zurich].” The trial
court explained that City Colleges suffered no loss. The court also explained that it found the
supplemental authority submitted by Infrastructure Engineering, the case law from New York, to
be persuasive. The trial court concluded that City Colleges “simply sustained no loss and was not
paid by the insurer; two requirements for there to be subrogation.”
¶ 14 Zurich filed a motion to reconsider the trial court’s grant of summary judgment in
Infrastructure Engineering’s favor. Zurich argued that the trial court failed to consider the
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subrogation provision in the applicable insurance policy. Zurich maintained that it was not
required to satisfy the traditional three prerequisites for subrogation because its right to subrogate
was derived from and controlled by the terms of the insurance policy. The trial court reiterated
that it relied on the language of a case cited by Zurich to find that the three prerequisites applied.
The trial court also cited a line of cases that it found to reaffirm its decision to grant the motion,
authority which stated that the three prerequisites at issue were required for “a claim for
equitable or contractual subrogation” (emphasis in original). The trial court denied Zurich’s
motion to reconsider, and Zurich filed this appeal.
¶ 15 ANALYSIS
¶ 16 Zurich argues that the trial court erred when it granted Infrastructure Engineering’s
motion for summary judgment by applying the requirements of equitable subrogation when the
court should have determined contractual subrogation applied instead. Infrastructure Engineering
argues Zurich forfeited its argument that contractual subrogation applied and that the elements of
equitable subrogation are not present.
¶ 17 Summary judgment is appropriate when the pleadings, depositions, admissions, and
affidavits, viewed in a light most favorable to the nonmovant, fail to establish that a genuine
issue of material fact exists, thereby entitling the moving party to judgment as a matter of
law. 735 ILCS 5/2-1005(c) (West 2022); Fox v. Seiden, 2016 IL App (1st) 141984, ¶ 12. If
disputes as to material facts exist or if reasonable minds may differ with respect to the inferences
drawn from the evidence, summary judgment may not be granted. Associated Underwriters of
America Agency, Inc. v. McCarthy, 356 Ill. App. 3d 1010, 1016-17 (2005). Summary judgment
is encouraged as an expeditious manner of disposing of a lawsuit, but it should only be utilized
when a party’s right to a judgment is clear and free from doubt. Adams v. Northern Illinois Gas
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Co., 211 Ill. 2d 32, 43 (2004). We review a trial court’s decision to grant summary
judgment de novo. Illinois Tool Works Inc. v. Travelers Casualty & Surety Co., 2015 IL App
(1st) 132350, ¶ 8.
¶ 18 Forfeiture of Contractual Subrogation
¶ 19 Infrastructure Engineering argues, as an initial matter, that Zurich has forfeited its
argument that it need not meet the prerequisites for equitable subrogation as set forth in our
decision in Trogub, 366 Ill. App. 3d at 842, because contractual subrogation applied.
¶ 20 Infrastructure Engineering’s forfeiture argument is based on the timing and the point in
the proceedings at which Zurich first raised the argument that the general prerequisites for
subrogation should not apply. Arguments raised for the first time in a motion to reconsider are
generally forfeited for purposes of appeal. Evanston Insurance Co. v. Riseborough, 2014 IL
114271, ¶ 36. However, as described below, Zurich raised its contractual subrogation argument
before the court entered its judgment and before a motion for rehearing was filed.
¶ 21 After the parties submitted their initial briefs on the summary judgment motion, Zurich
raised the issue at the hearing on the motion for summary judgment. Subsequently, the trial court
requested supplemental briefing. In its supplemental briefing, Zurich argued that contractual
subrogation standards should apply instead of the equitable subrogation standard argued by
Infrastructure Engineering.
¶ 22 We note that Zurich raised the argument that contractual prerequisites should apply
instead of equitable prerequisites when the parties were still in the briefing phase of the motion,
at a time before the trial court made its decision. Zurich clearly and forcefully raised the issue in
the supplemental briefing for the motion for summary judgment that was ordered by the court.
As Infrastructure Engineering acknowledges in its brief on appeal, the trial court “recognized and
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disregarded” Zurich’s apparent change in positions when the court ruled on the motion for
summary judgment. In its order disposing of the motion for summary judgment, the trial court
expressly relied on a New York case provided by Infrastructure Engineering in its supplemental
briefing, so it is clear that the supplemental briefing was taken into consideration by the trial
court before summary judgment was entered.
¶ 23 Zurich thereafter raised the argument in a motion to reconsider, giving the trial court a
second opportunity to address the issue. In ruling on the motion to reconsider, the trial court
observed that Zurich presented the argument that “it was error for the Court to require it to prove
the three elements of subrogation because its case sought contractual subrogation (not equitable
subrogation).” The trial court addressed the issue both during summary judgment proceedings
and in a motion to reconsider, and it ruled against Zurich on the merits both times.
¶ 24 Perhaps more importantly, Zurich’s response to the motion for summary judgment is
replete with arguments that the contract should be what controls its right to subrogation. Zurich
provided authority for the proposition that the policy provisions should control the right to
subrogation, and it urged the court to interpret the plain language of the contract without resort to
external sources or rules of construction. Zurich quoted the subrogation provision from the
applicable policy and stated that “[b]ased on that provision, [Zurich] is subrogated to City
Colleges’ rights of recovery.” Zurich argued that “ ‘[w]here the right of an insurer to subrogation
is expressly provided for in the policy, its right must be measured by, and depend solely on, the
terms of such provisions’ ” (quoting American Family Mutual Insurance Co. v. Northern
Heritage Builders, L.L.C., 404 Ill. App. 3d 584, 588 (2010)). Zurich further contended in its
response to the motion that Infrastructure Engineering’s position in its motion for summary
judgment was flawed because it was improperly focused on whether City Colleges received any
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claim payments under the policy, instead of being focused on an analysis of the subrogation
provision in the policy itself. Zurich concluded in its response that, “[u]nder the unambiguous
terms of the Policy, [Zurich], to the extent of its claim payments, is subrogated to City Colleges’
rights of recovery because City Colleges is an insured under the Policy.” Although Zurich’s
citation to the prerequisites for subrogation in Trogub was misguided, Zurich saved itself from
forfeiture by correcting course before it was too late and by making other arguments in its
response to the summary judgment motion stressing the determinativeness of the contractual
subrogation provision.
¶ 25 Infrastructure Engineering relies on Evanston Insurance to argue that “arguments not
raised in response to a motion and/or raised for the first time in a motion for reconsideration are
forfeited on appeal.” Infrastructure Engineering insinuates that an argument is forfeited simply
by virtue of the argument not being raised in the initial written response to a motion. However,
the authority it relies upon does not stand for such a proposition. In Evanston Insurance, our
supreme court found an argument forfeited when it was raised for the first time in a motion to
reconsider. Evanston Insurance, 2014 IL 114271, ¶ 36. The same is true in the other case
Infrastructure Engineering relies upon in support of its forfeiture argument. See Caywood v.
Gossett, 382 Ill. App. 3d 124, 133-34 (2008) (argument made for the first time in a motion to
reconsider is forfeited). Those cases recite the general and well-settled rule that a party cannot
raise an issue for the first time in a motion to reconsider, but Zurich raised its argument while the
summary judgment proceedings were ongoing. Therefore, we reject the argument that Zurich has
forfeited the argument it raises here.
¶ 26 Infrastructure Engineering’s invited error argument is based on the fact that Zurich itself
made the statement that the general prerequisites for subrogation applied here when it responded
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to the motion for summary judgment. The doctrine of invited error is a form of procedural
default that prohibits a party from complaining of error which that party induced the court to
make or to which that party consented. In re Detention of Swope, 213 Ill. 2d 210, 217 (2004).
The rationale behind the rule is that “it would be manifestly unfair to allow a party a second trial
upon the basis of error which that party injected into the proceedings.” Id. For the same reasons
that we reject Infrastructure Engineering’s forfeiture argument, we reject its invited error
argument.
¶ 27 Before summary judgment was entered, Zurich made clear it was pursuing the path of
arguing that the contractual subrogation provision should control, to the exclusion of the general
prerequisites for subrogation. The trial court and the opposing party were well aware of Zurich’s
position at a point before summary judgment was entered. Zurich was not moving the goalposts
or engaged in gamesmanship to manipulate the proceedings. There is no basis for finding Zurich
to have invited an error, nor is there any basis to find Zurich to be estopped from taking the
position on appeal that it took during the summary judgment proceedings.
¶ 28 Moreover, the doctrine of forfeiture is a limitation on the parties, not on the court.
Walworth Investments-LG, LLC v. Mu Sigma, Inc., 2022 IL 127177, ¶ 94; see also Sakellariadis
v. Campbell, 391 Ill. App. 3d 795, 800 (2009). We may consider arguments by a party that were
not timely raised in the interests of achieving a just result and maintaining a uniform body of
precedent (Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 463 (2003)), especially
where the issue is one of law and is fully briefed by the parties on appeal (Committee for
Educational Rights v. Edgar, 174 Ill. 2d 1, 11 (1996)). According to the above standard, the issue
in this case is well-suited to being addressed on the merits because it is an issue of law fully
briefed by the parties.
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¶ 29 Contractual Subrogation Applies
¶ 30 Turning to the merits of the parties’ arguments, this appeal asks us to decide whether the
general prerequisites for equitable subrogation that we have applied in Trogub and other cases
should be applied when an insurer bases its right to subrogate on an express contractual
subrogation provision. Zurich argues that the prerequisites set forth in Trogub only apply for
equitable subrogation and should not apply to Zurich in this case because it is asserting its right
to contractual subrogation. Infrastructure Engineering argues that the prerequisites set forth in
Trogub apply to any subrogation case, regardless of the basis for the right to subrogate.
¶ 31 To subrogate means to substitute one person for another regarding a legal right or claim.
Sheckler v. Auto-Owners Insurance Co., 2022 IL 128012, ¶ 39 (citing Black’s Law Dictionary
1726 (11th ed. 2019)). A party that has the right of subrogation is allowed to stand in the shoes
of another and assert that person’s rights against a third party. CNA Insurance Co. v. DiPaulo,
342 Ill. App. 3d 440, 442 (2003). In the insurance context, subrogation typically arises when an
insurer pays out a claim to its insured and then seeks to pursue claims against a third party on the
basis that the third party is the one who caused the loss to the insured. See Sheckler, 2022 IL
128012, ¶ 39; Benge v. State Farm Mutual Automobile Insurance Co., 297 Ill. App. 3d 1062,
1067 (1998). The doctrine rests on the principle that ultimate responsibility for the loss should be
placed on the one who deserves to bear the burden of the loss. CNA Insurance, 342 Ill. App. 3d
at 442.
¶ 32 Based on our review of the authority submitted by the parties, we conclude that the
requirements set forth in the insurance policy control Zurich’s right to subrogation. Our supreme
court has explained that “[t]here are two broad categories of subrogation rights: contractual or
conventional rights and common law or equitable rights.” Schultz v. Gotlund, 138 Ill. 2d 171,
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173 (1990). “Contractual rights are those expressly provided for in the insurance policy or other
instrument.” Id. “The other class of right to subrogation, equitable subrogation, is implied to
have been intended where necessary to avoid an inequitable and unfair result.” Id. In this case,
we are dealing with Zurich’s contractual rights, as it bases its right to subrogation on an express
contractual provision in the insurance policy.
¶ 33 Where the right of subrogation is created by the terms of an enforceable contract, the
contract terms control, rather than common law or equitable principles. Northern Heritage, 404
Ill. App. 3d at 588; see also American Family Mutual Insurance Co. v. Plunkett, 2014 IL App
(1st) 131631, ¶ 20. In fact, the existence of the unambiguous subrogation contract provision bars
the application of the common law doctrine. 34 Ill. L. and Prac. Subrogation § 6 (2015) (citing
Evangelical Benefit Trust v. Lloyd’s Underwriters Syndicate Nos. 2987, 1607, 1183 & 2001, No.
09 C 4004, 2012 WL 379632, at *10 (N.D. Ill. Feb. 3, 2012)).
¶ 34 The Northern Heritage court approvingly quoted Couch on Insurance to explain that
“ ‘where the right of an insurer to subrogation is expressly provided for in the policy, its right
must be measured by, and depend solely on, the terms of such provisions.’ ” (Emphasis
added.) Northern Heritage, 404 Ill. App. 3d at 588 (quoting 16 Couch on Insurance 3d § 222:23
(2000)). And, as the court observed in Plunkett, “since there was a subrogation clause in the
insurance policy, established law provide[s] that the policy’s contractual terms *** apply, rather
than common law or equitable principles.” Plunkett, 2014 IL App (1st) 131631, ¶ 36. We agree
with Zurich that the proper focus in this case is whether Zurich is entitled to subrogate based on
the express terms of the builder’s risk policy it issued.
¶ 35 Infrastructure Engineering argues, and the trial court found, that regardless of the
language of the policy, Zurich was required to show three elements to be entitled to subrogate:
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(1) a third party must be primarily liable to the insured for the loss, (2) the insurer must be
secondarily liable to the insured for the loss under an insurance policy, and (3) the insurer must
have paid the insured under that policy, thereby extinguishing the debt of the third party (citing
Trogub, 366 Ill. App. 3d at 842). We find those requirements do not strictly control a party’s
right to subrogation when the party meets all the contractual requirements for subrogation in the
controlling contract.
¶ 36 As Infrastructure Engineering points out, some decisions from this court have applied
these common law prerequisites in contractual subrogation cases. See id.; State Farm Mutual
Automobile Insurance Co. v. Easterling, 2014 IL App (1st) 133225, ¶ 21; SwedishAmerican
Hospital Ass’n of Rockford v. Illinois State Medical Inter-Insurance Exchange, 395 Ill. App. 3d
80, 105 (2009); Economy Premier Assurance Co. v. Country Mutual Insurance Co., 2021 IL App
(1st) 192364-U, ¶ 65. None of the cases Infrastructure Engineering relies upon really examined
the distinction between contractual and equitable subrogation. And none of those cases provides
strong or convincing reasoning for applying the requirements for equitable subrogation in the
face of an express contractual subrogation provision. Insofar as those cases hold that the three
general prerequisites for equitable subrogation control over the express terms of a subrogation
clause in a contract, we disagree with their holdings.
¶ 37 The terms of an unambiguous insurance policy should be enforced as written. King v.
Allstate Insurance Co., 269 Ill. App. 3d 190, 192 (1994). Where the terms of a contract are clear
and unambiguous, they must be enforced as written, and courts cannot rewrite a contract. Illinois
Union Insurance Co. v. Medline Industries, Inc., 2022 IL App (2d) 210175, ¶ 68. When the
terms of an insurance policy are clear, we do not look to external sources for determining the
terms of the agreement; we look to the contract itself. Plunkett, 2014 IL App (1st) 131631, ¶ 36;
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see Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 344 (2000) (if the language in the
contract is clear and unambiguous, courts must determine the intention of the parties solely from
the plain language of the contract and may not consider extrinsic evidence outside the four
corners of the document itself).
¶ 38 The federal district court for the Northern District of Illinois recently examined this issue
at some length. In James River Insurance Co. v. Canal Insurance Co., 534 F. Supp. 3d 962, 967-
69 (N.D. Ill. 2021), the court was presented with arguments from the parties similar to those
presented here. The James River court was tasked with deciding whether the elements for
equitable subrogation needed to be established when a party was pursuing subrogation based on
a contract. Id. at 968. The district court examined much of the case law discussed above and
discussed by the parties in their briefs here, and it concluded that the contractual subrogation
clause was controlling so that the court did not need to take into account the elements of
equitable subrogation. Id. at 969. We find the James River court’s analysis to be persuasive on
this point.
¶ 39 In this case, we have no need to look to the common law or equitable principles that
generally apply to subrogation claims based in equity. We have express contractual terms that
define the right to subrogation and the scope of that right. See Northern Heritage, 404 Ill. App.
3d at 588. Where the right to subrogation is created by an enforceable subrogation clause in a
contract, the contract terms, rather than common law or equitable principles, control. Plunkett,
2014 IL App (1st) 131631, ¶ 36. Accordingly, we find that the trial court erred when it required
Zurich to show compliance with principles outside the contract in order to be able to enforce its
right to subrogation.
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¶ 40 Having decided that the terms of the contract control whether Zurich is entitled to
subrogate, we turn to the language of the builder’s risk policy to determine if Zurich is entitled to
subrogate for City Colleges. As both parties recognize, this case involves a review of multiple
contracts and an insurance policy. An insurance policy is construed like any contract, so the
determination of the parties’ rights and obligations thereunder is a question of law. Cook v. AAA
Life Insurance Co., 2014 IL App (1st) 123700, ¶ 24. The primary goal of contract interpretation
is to give effect to the parties’ intent. Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2014
IL App (1st) 111290, ¶ 75. A contract must be interpreted as a whole, and the plain and ordinary
meaning must be ascribed to unambiguous terms. Id. The terms of an unambiguous insurance
policy should be enforced as written. King, 269 Ill. App. 3d at 192.
¶ 41 The policy expressly provides Zurich with a right of subrogation to the extent of its claim
payments.
“If [Zurich] pays a claim under this Policy, [it] will be subrogated, to the
extent of such payment, to all the Insured’s rights of recovery from other persons,
organizations and entities. ***
***
It is a condition of this Policy that [Zurich] shall be subrogated to all the
Insured’s unwaived rights of recovery, if any, against any third party Architect or
Engineer, whether named as an Insured or not, for any loss or damage arising out
of the performance of professional services in their capacity as such and caused
by any error, omission, deficiency or act of the third party Architect or Engineer,
by any person employed by them or by any others for whose acts they are legally
liable.”
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¶ 42 Infrastructure Engineering argues that City Colleges is not “the Insured” for purposes of
the subrogation provision. Infrastructure Engineering contends that the subrogation provision
“does not provide Zurich with the right to subrogate on behalf of one insured (City Colleges)
based on a loss sustained by, claimed by, and paid to another insured (CMO).” It, therefore,
argues that Zurich is not entitled to subrogate for City Colleges based on the terms of the
contractual subrogation provision. It contends that
“[h]ad the parties to the Builders Risk Policy intended to give Zurich the right to
subrogate on behalf of every ‘Insured’ under the Builders Risk Policy whenever Zurich
made a claim payment, [the subrogation provision] would have been drafted to reflect
that Zurich was subrogated to ‘each Insured’s rights of recovery’ or to ‘all Insureds’
rights of recovery.’ ”
¶ 43 The builder’s risk policy at issue here identifies CMO as the “Named Insured.” The
policy identifies the City Colleges as an “Additional Named Insured.” The policy designates
CMO to be the agent for all the Additional Named Insureds for purposes of paying policy
premiums, communicating with Zurich, and receiving claim payments.
“[CMO] shall be deemed the sole and irrevocable agent of each and every Insured
hereunder for the purpose of giving and receiving notices to/from [Zurich], giving
instruction to or agreeing with [Zurich] as respects Policy alteration, for making
or receiving payments of premium or adjustments to premium, and as respects the
payment for claims.”
The policy expressly defines the terms “named insured” and “additional named insured.”
“Named Insured” is:
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“the sole and irrevocable agent of each and every Insured hereunder for the
purpose of giving and receiving notices to/from the Company, giving instruction
to or agreeing with the Company as respects Policy alteration, for making or
receiving payments of premium or adjustments to premium, and as respects the
payment for claims.”
“Additional Named Insured[ ]” is:
“All owners, all contractors and subcontractors of every tier, and tenants at
the project location, except as named in A. above, as required by any contract,
subcontract or oral agreement for the INSURED PROJECT*, and then only as
their respective interests may appear are recognized as Additional Named
Insureds hereunder. As respects architects, engineers, manufacturers and
suppliers, their interest is limited to their site activities only.”
Finally, under the policy “Insured” collectively refers to the “Named Insured” and all
“Additional Named Insured(s).” Thus, the term “Insured” refers to each of the entities insured
under the builder’s risk policy. The subrogation provision is not limited to the “Named Insured,”
but instead is extended to the right to subrogate for “the Insured.” In other parts of the policy
where CMO is addressed directly, the policy uses “Named Insured.” As we have recognized, “an
‘insured’ in a policy is not limited to the named insured but includes anyone insured under the
policy.” Chubb Insurance Co. v. DeChambre, 349 Ill. App. 3d 56, 63 (2004). City Colleges
meets the policy’s definition of an insured because City Colleges was “required by contract” to
be insured under the policy, and City Colleges had an insurable interest in the project.
¶ 44 Infrastructure Engineering contends we should conclude that the subrogation provision in
the insurance policy does not provide Zurich with the right to subrogate on behalf of City
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Colleges because the undisputed evidence shows that City Colleges did not sustain a loss, claim
a loss, or receive payment for a loss. It contends that CMO is the party who sustained the loss,
made the claim, and received the claim payment.
¶ 45 The general rule in construction cases is that both the owner and the general contractor
have insurable interests in the property until construction is complete. Intergovernmental Risk
Management v. O’Donnell, Wicklund, Pigozzi & Peterson Architects, Inc., 295 Ill. App. 3d 784,
791 (1998); see also 11 Couch on Insurance 3d § 155:42 (June 2023 Update) (builder’s risk
insurance protects the property owner, the contractor, and others with an interest in the project
against certain risks of loss to the construction project). The purpose of the builder’s risk policy
was to provide insurance coverage for the property during the period of the construction. Both
City Colleges and CMO had insurable interests that were protected by the builder’s risk policy.
As the owner of the property under construction, City Colleges had a tangible, insurable interest
in the insured property at all times and it suffered a “loss” due to the flooding damage. City
Colleges suffered a further loss as a result of the delays occasioned by the flooding. CMO
purchased the insurance policy for the benefit of City Colleges, and City Colleges reimbursed
CMO for the payment of its share of the premiums, as CMO was required to be the party to make
the premium payments as the agent of City Colleges. As the agent for all the additional insureds,
CMO was also required to communicate with Zurich on City Colleges’ behalf, and CMO was
required to be the party to receive the claim payments. City Colleges is an “insured” under the
builder’s risk policy and, under the policy’s subrogation provision, Zurich acquired City
Colleges’ rights to recovery against third parties for the loss. According to the unambiguous
language of the builder’s risk policy at issue in this case, Zurich has the right to subrogate for
City Colleges under the circumstances presented.
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¶ 46 Infrastructure Engineering relies on New York Board of Fire Underwriters v. Trans
Urban Construction Co., 91 A.D. 2d 115 (N.Y. App. Div. 1983), in support of its arguments on
appeal, and the trial court found the case to be persuasive in its determination that summary
judgment was warranted. The trial court explained that Trans Urban was persuasive because it
showed that Zurich was not entitled to subrogate for City Colleges where City Colleges did not
submit the claim for the loss, was not the party that suffered the loss, and did not receive any
claim payments for the loss. We find Trans Urban to be distinguishable and not suited for
application to the particular circumstances presented here.
¶ 47 In Trans Urban, the contract between the owner and the general contractor imposed
“ ‘full responsibility’ ” for the loss on the general contractor. Id. at 116-17. The owner was the
party who was required to purchase insurance to cover the property during construction. Id. at
117. The general contractor was named as one of the additional insureds. Id. Following the loss
event, the general contractor fully assumed the loss by repairing the damage to the building. Id.
at 118. The general contractor submitted a claim to the insurer for the repair costs, and checks
were issued by the insurer made payable to the owner. Id. The owner endorsed the checks over to
the general contractor to cover the cost of the repairs it performed. Id.¶ 48 Subsequently, the insurer in Trans Urban filed an action against the general contractor
for the loss. The insurer alleged that the general contractor was liable for the loss because it
performed improper construction before the loss event which allowed the loss to occur. Id. The
insurer contended that it was entitled to subrogate to the owner’s rights against the general
contractor. Id. at 119. The general contractor moved for summary judgment arguing that no right
of subrogation existed because the owner suffered no loss since the general contractor had fully
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assumed the risk of loss and then repaired all the damage to the building following the loss event.
Id. at 118-19.
¶ 49 The court in Trans Urban explained that the insurer was not entitled to subrogation based
on the general rule that “there is no right of subrogation in favor of the insurer against its own
insured” which also includes “that there may be no right of subrogation against a party named as
an additional assured in the policy.” Id. at 120 (citing 16 Couch on Insurance 2d §§ 61:136-
61:137 (1983)). In Trans Urban, the general contractor was an additional insured under the
policy and was not a third party, which is a requirement for subrogation. Id. Such is not the
situation in this case. Here, Zurich is asserting a claim against a third party, Infrastructure
Engineering, who has no rights as an insured under the applicable contract of insurance.
¶ 50 The court in Trans Urban also found that the insurer was not entitled to subrogation
because the owner, for whom the insurer sought to subrogate, had no claim against the general
contractor because the general contractor had borne all the risk of loss in the case and had made
all the necessary repairs following the loss event. Id. at 122-23. The court explained that since
the owner had no cause of action against the general contractor, the insurer similarly would have
no action against the general contractor in subrogation. Id. at 123. Here, however, Infrastructure
Engineering did not agree to bear all the risk of loss, nor has it paid for all the repairs to bear the
loss it allegedly caused. The insureds in this case suffered a loss that they are responsible for
bearing unless they prove a third party is liable. As explained above, City Colleges suffered a
loss and Zurich is entitled to subrogate to City Colleges’ rights under the contract of insurance.
Accordingly, Trans Urban is distinguishable and does not demonstrate that Infrastructure
Engineering is entitled to judgment as a matter of law.
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¶ 51 Finally, Infrastructure Engineering argues that Zurich is not entitled to pursue its claim
because neither City Colleges nor CMO is a third-party beneficiary of the subcontract between
Infrastructure Engineering and Moody Nelson. Infrastructure Engineering relies principally on
the clause in the subcontract that states “Nothing contained in this Agreement shall create a
contractual relationship with, or a cause of action in favor of, a third party against either the
Architect or [Infrastructure Engineering].” The trial court rejected Infrastructure Engineering’s
argument on this point even though the court ruled in its favor on the other grounds presented.
We agree with the trial court that City Colleges is a third-party beneficiary of the applicable
subcontract.
¶ 52 To determine whether a party is a third-party beneficiary, courts look to the contract to
determine the intent of the parties. Ball Corp. v. Bohlin Building Corp., 187 Ill. App. 3d 175, 177
(1989). A third party is a direct beneficiary when the contracting parties have manifested an
intent to confer a benefit upon the third party. Id. In this case, whether City Colleges is a third-
party beneficiary depends on an interpretation of the contracts at issue and presents a question of
law which we review de novo. See Marque Medicos Fullerton, LLC v. Zurich American
Insurance Co., 2017 IL App (1st) 160756, ¶ 46 (the construction, interpretation, or legal effect of
a contract is a matter to be determined by the court as a question of law and is reviewed
de novo). Whether someone is a third-party beneficiary depends on the intent of the contracting
parties, as evidenced by the contract language. Id.¶ 53 The contract between City Colleges and Moody Nelson expressly required City Colleges
to be a third-party beneficiary of any subcontracts Moody Nelson entered into with its
subcontractors.
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“In addition, each subcontract for the performance of the Services must provide
that [City Colleges] is a third-party beneficiary to the subcontract and may
enforce any of the subcontract terms including, those pertaining to standard of
performance, indemnity and insurance.”
The subcontract between Moody Nelson and Infrastructure Engineering expressly states that any
discrepancies between the subcontract and the prime contract between City Colleges and Moody
Nelson would be controlled by the prime contract. The terms of the prime contract were
incorporated into and became part of the subcontract between Infrastructure Engineering and
Moody Nolan. Accordingly, the term from the prime contract making City Colleges a third-party
beneficiary must be deemed to be a term of the subcontract. To the extent the prime contract and
the subcontract conflict on this point, the prime contract provision would control.
¶ 54 As the trial court correctly found, City Colleges is a third-party beneficiary of the Moody
Nelson-Infrastructure Engineering subcontract. The trial court explained that “the subcontract at
issue fully incorporates the terms of the Prime Agreement” and the prime agreement
“unambiguously demonstrates an intention that [City Colleges] is a third-party beneficiary of the
subcontract.” When the terms of the prime contract and subcontract are considered together as a
whole, it is clear that the parties intended City Colleges to be a third-party beneficiary of the
subcontract.
¶ 55 CONCLUSION
¶ 56 Based on the foregoing, we reverse and remand for further proceedings.
¶ 57 Reversed and remanded.
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Zurich American Insurance Co. v. Infrastructure Engineering, Inc.,
2023 IL App (1st) 230147Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-L-12712;
the Hon. Patrick J. Sherlock, Judge, presiding.
Attorneys Patrick C. Hess and Jenna L. Mahoney, of Nielsen, Zehe & Antas,
for P.C., of Chicago, for appellant.
Appellant:
Attorneys Newton C. Marshall and Douglas R. Garmager, of Karbal, Cohen,
for Economou, Silk & Dunne, LLC, of Chicago, for appellee.
Appellee:
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