American Guarantee and Liability Insurance Company v. EXP US Services

2023 IL App (1st) 210821-UNo. 1- 21-0821
Order filed February 10, 2023
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
AMERICAN GUARANTEE AND LIABILITY ) Appeal from the Circuit Court
INSURANCE COMPANY, ) of Cook County, Illinois
)
Plaintiff-Appellee, ) No. 2019 CH 1639
)
v. ) The Honorable
EXP US SERVICES, ) Allen P. Walker
) Judge Presiding
)
Defendant-Appellant.
JUSTICE C.A. WALKER delivered the judgment of the court.
Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
Held: The grant of summary judgment in favor of insurer is affirmed where
insurer was an excess insurer that did not owe a duty to defend until all
primary coverage was exhausted.
¶1 Plaintiff American Guarantee and Liability Insurance Company (AGLIC) filed a complaint
for declaratory judgment against Defendant EXP US-Services (EXP). AGLIC and EXP filed cross-
motions for summary judgment (735 ILCS 5/2-1005 (West 2018)). The circuit court granted
No. 1- 21-0821
AGLIC’s motion for summary judgment and denied EXP’s motion to reconsider. EXP appeals
arguing the circuit court erred in granting summary judgment in favor of AGLIC. For the following
reasons we affirm.
¶2 I. BACKGROUND
¶3 The Illinois Department of Transportation engaged F.H. Paschen, S.N. Nielsen &
Associates, LLC (Paschen) as a general contractor and EXP as an engineering firm for construction
work on the Algonquin Bypass Project in Algonquin, Illinois. Paschen entered into a subcontract
with Arrow Road Construction Company (Arrow Road). The subcontract between Paschen and
Arrow Road provided in part:
“Insurance to be Provided * * *
2) Commercial General Liability Insurance
Commercial General Liability Insurance with a single limit of not less than
$2,000,000.00 per occurrence and $2,000,000 in the aggregate. Such insurance
shall include a designated construction project general aggregate limit
endorsement. Such insurance shall provide coverage for bodily injury, personal
injury, property damage, premises and operations, explosion, collapse and
underground hazards, products and completed operations, contractual liability,
independent contractors, broad form property damage (including products and
completed operations). F.H. Paschen, S.N. Nielsen & Associates LLC and its
related entities, The Illinois Department of Transportation, EXP. shall be included
as additional insured, with coverage no more restrictive than Insurance Services
Office (ISO) Form Number CG 20 10 10 01 and CG 20 37 10 01. Coverage
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provided the additional insured shall be on a primary, non-contributory basis for
any liability arising directly or indirectly from the work of the Subcontractor. If
subcontractor has work within 50 feet of the railroad, subcontractor shall obtain
endorsement CG 24 17 10 01 Contractual Liability Railroads, to obtain coverage
under its General Liability Policy for work within 50 feet of railroad tracks. The
insurance carrier shall provide a waiver of subrogation for all above listed
additional insureds. Products/Completed Operations shall extend for two years after
Final Completion. ***
4) Professional Liability
When any architects, engineers or consulting firms perform work in connection
with the subcontract, Professional Liability Insurance shall be maintained with
limits of $5,000,000. The policy shall have an extended reporting period of two
years. When policies are renewed or replaced, the policy retroactive date must
coincide with or precede start of work pursuant to the contract. ***
8) Umbrella Liability Insurance
This coverage is to follow the form of all primary coverage requirements as outlined
above and shall be provided in an amount not less than ($5,000,000) each
occurrence and annual aggregate on a per project basis excess of the underlying
policy limits. Subcontractor must have its Umbrella/Excess insurance endorsed to
include as an additional insured F.H. Paschen, S.N. Nielsen & Associates LLC and
its related entities, The Illinois Department of Transportation, EXP.”
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¶4 Arrow Road was required to maintain commercial general liability (CGL) insurance in the
amount of $2 million per occurrence and in the aggregate for Paschen, IDOT, and EXP as
additional insureds. Arrow Road procured the primary CGL insurance policy from BITCO General
Insurance Corporation (BITCO), effective from March 1, 2014, to March 1, 2015. Arrow Road
was also required to maintain umbrella liability insurance, with a minimum of $5,000,000 of
coverage, to follow the form of all primary coverage requirements. AGLIC issued the $5,000,000
commercial umbrella policy to Arrow Road for the effective period of March 31, 2014 to March
1, 2015.
¶5 On June 3, 2014, Paul Sitz was injured when his motorcycle struck a raised manhole in the
Algonquin Bypass construction zone. Sitz subsequently filed an action against Paschen, Arrow
Road, and EXP, among other defendants. In the first amended complaint, Sitz alleged, inter alia
negligence on the part of the named defendants. Arrow Road settled with Sitz for $225,000.
¶6 EXP was the insured on a CGL policy issued by XL Catlin (Catlin). EXP sought coverage
under the policy, but Catlin denied coverage based on a professional services exclusion.
Additionally, EXP had a claims-made professional liability insurance policy issued by "Lloyd's
Syndicate - Beazley Furlonge Group (Syndicate AFB623-2623)" (Beazley). Beazley did not
dispute coverage relating to the claims made against EXP in the Sitz lawsuit.
¶7 EXP contended that it was an additional insured under the BITCO policy because of an
endorsement entitled “Transportation Contractors Extended Liability Coverage,” that allowed
additional insureds to qualify under the policy if Arrow Road was required to declare the entity as
an additional insured. BITCO disputed EXP’s coverage under the policy and initiated a declaratory
action regarding its obligation to defend or indemnify EXP and Paschen. The issue was later
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resolved in a settlement. Bitco General Ins. Corp. v. Exp Us Services, Inc., No. 2016 CH 15119,
2017 (Ill.Cir.Ct. Oct. 24, 2017). As a result of the settlement, BITCO paid $125,000 to EXP for
the Sitz settlement.
¶8 EXP also sought coverage from the AGLIC policy because the AGLIC policy identified
the BITCO policy as underlying insurance in an endorsement. EXP claimed that, because it was
an insured on the BITCO policy, it also qualified as an insured on the AGLIC policy. EXP sent
multiple letters to AGLIC seeking indemnification and defense in the Sitz lawsuit prior to the
settlement with Sitz. After the settlement with Sitz and BITCO, EXP sought the remaining $2.45
million from AGLIC. AGLIC denied coverage for the Sitz lawsuit on October 11, 2018.
¶9 On February 7, 2019, AGLIC filed a complaint for declaratory judgment against EXP and
sought a declaration that AGLIC did not owe EXP any amount in connection with the Sitz action.
AGLIC argued (1) there was not a valid assignment from Beazley to EXP regarding a right to
recovery; (2) the professional services exclusion in the AGLIC umbrella policy negates any
coverage EXP may claim; (3) the settlement payment made by Beazley was not “caused, in whole
or in part,” by Arrow Road’s conduct; and (4) the AGLIC umbrella policy is excess to the Beazley
policy. EXP denied all material allegations. AGLIC filed a motion for summary judgment, and
EXP filed a cross motion for summary judgment.
¶ 10 On March 2, 2021, the circuit court granted AGLIC’s motion for summary judgment and
denied EXP’s cross-motion. The circuit court found that the AGLIC policy was excess to the
Beazley policy, and while the court found that EXP’s liability could have been caused, in whole
or in part, by Arrow Road’s conduct, the professional services exclusion in the AGLIC policy
negates any coverage for EXP.
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¶ 11 Subsequently, the circuit court denied EXP’s motion to reconsider the grant of summary
judgment in favor of AGLIC. The court declined to consider EXP’s argument that the AGLIC
policy was required to pay $1 million because the Arrow Road’s CGL policy did not meet the
requisite $2 million limit. The court reasoned that EXP failed to assert the argument earlier in the
proceedings, despite the information being available to EXP.
¶ 12 EXP now appeals.
¶ 13 II. ANALYSIS
¶ 14 On appeal, EXP argues that the circuit court erred by (1) finding AGLIC’s umbrella
insurance policy provides only excess insurance coverage and was excess to EXP’s Beazley
insurance policy; (2) finding the professional services exclusion in AGLIC’s policy excluded
coverage for EXP despite allegations in the underlying Sitz lawsuit alleging EXP was liable for
non-professional services; and (3) denying EXP’s cross-motion for summary judgment. EXP also
contends that $1 million of the AGLIC policy must be treated as primary insurance coverage
because Arrow Road did not procure the $2 million CGL insurance required by the contract with
Paschen. AGLIC responds that the AGLIC policy does not provide indemnity coverage for
Beazley’s settlement payment because the payment was made to resolve a professional liability
claim against EXP. Given that the AGLIC policy contains professional services exclusions,
coverage for the payment is negated. AGLIC argues that even if some portion of the settlement
payment was conceivably covered under the AGLIC policy, the AGLIC policy would be excess
insurance to the Beazley policy for purposes and amounts paid on behalf of EXP.
¶ 15 “The construction of an insurance policy and a determination of the rights and obligations
thereunder are questions of law for the court which are appropriate subjects for disposition by way
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of summary judgment.” Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d
384, 391 (1993). Here, the parties filed cross-motions for summary judgment. The filing of cross-
motions for summary judgment constitutes an implicit agreement between the parties that there
are no genuine issues of material fact and only a question of law is presented to the court. Rushton
v. Department of Corrections, 2019 IL 124552, ¶ 13, 160 N.E.3d 929. Summary judgment is
appropriate where the pleadings, depositions, admissions, and affidavits on file, viewed in a light
most favorable to the nonmoving party, reveal no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2020); General
Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18 (2002). We review the grant
of summary judgment de novo. Kajima Construction Services, Inc. v. St. Paul Fire & Marine
Insurance Co., 227 Ill. 2d 102, 106 (2007).
¶ 16 “Contracts of insurance are subject to the same rules of construction applicable to other
types of contracts.” International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co.,
168 Ill. App. 3d 361, 370 (1988). While construing an insurance policy, this court’s primary
function is to ascertain and enforce the intentions of the parties as expressed in the agreement. De
Los Reyes v. Travelers Insurance Cos., 135 Ill. 2d 353, 358 (1990). “To ascertain the intent of the
parties and the meaning of the words used in the insurance policy, the court must construe the
policy as a whole, taking into account the type of insurance for which the parties have contracted,
the risks undertaken and purchased, the subject matter that is insured and the purpose of the entire
contract.” Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993).
¶ 17 When the terms of an insurance policy are clear and unambiguous, they are given their
plain and ordinary meaning. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997).
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If the terms in a policy are susceptible to multiple meanings, the terms are considered ambiguous
and will be construed strictly against the insurer. W. Bend Mut. Ins. Co. v. Krishna Schaumburg
Tan, Inc., 2021 IL 125978, ¶ 31. “Where competing reasonable interpretations of an insurance
contract exist, a court is not permitted to choose which interpretation it will follow; rather, in such
circumstances, the court must construe the insurance contract in favor of the insured and against
the insurer that drafted the contract.” Id.¶ 18 EXP specifically claims the circuit court erred in finding that the AGLIC policy did not
apply until EXP’s Beazley policy limit was exhausted. EXP argues that the minimum insurance
coverage requirement in the contract between Arrow Road and Paschen, along with AGLIC’s and
BITCO’s policy terms, leads to a finding that Beazley’s policy is excess to AGLIC’s policy.
Furthermore, EXP argues that AGLIC’s policy should apply regardless of the professional services
exclusion because the underlying complaint was not limited to allegations of professional
negligence.
¶ 19 A. Waiver
¶ 20 As a preliminary matter, we address AGLIC’s claim that EXP waived any recovery claim
as Beazley’s assignee. AGLIC argues recovery was waived on two grounds. First, although Arrow
Road’s BITCO policy was required to provide primary insurance coverage of $2 million, it
provided for only $1 million of coverage. EXP failed to assert, in prior response and cross motion
to AGLIC’s motion for summary judgment, that the AGLIC policy should cover the additional $1
million in primary coverage not included in the BITCO policy. EXP argues that it cited the
subcontract in its motion for summary judgment to claim that the AGLIC policy is primary because
$1 million of the AGLIC policy will satisfy the CGL insurance required by the subcontract.
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However, the record shows that EXP did not argue Arrow Road failed to procure the requisite $2
million CGL coverage until EXP filed its motion to reconsider the circuit court’s summary
judgment ruling. The law is clear that issues cannot be raised for the first time before the circuit
court in a motion to reconsider, and issues raised for the first time in a motion to reconsider cannot
be raised on appeal. American Chartered Bank v. USMDS, Inc., 2013 IL App (3d) 120397, ¶ 13,
987 N.E.2d 818.
¶ 21 Lastly, AGLIC argues that because Beazley settled the claims against EXP without
contending that other carriers should have contributed to the settlement, Beazley waived recovery.
The failure of a paying insurer to reserve its rights against a nonpaying insurer may constitute a
waiver of the right to equitable remedies. Home Ins. Co. v. Cincinnati Ins. Co., 213 Ill. 2d 307,
326–27 (2004). Waiver can be expressed or implied, arising from acts, words, conduct, or
knowledge of the insurer. Id. at 326 An implied waiver arises when conduct of the insurer is
inconsistent with any intention other than to waive it. Liberty Mutual Insurance Co. v. Westfield
Insurance Co., 301 Ill. App. 3d 49, 53, 703 N.E.2d 439 (1998). In its reply brief, EXP argues that
Beazley did not waive any recovery claim against AGLIC because EXP “is not seeking equitable
remedies.” The basis of EXP’s argument is that EXP has demonstrated the AGLIC policy is
primary to the Beazley policy. EXP further argues that Beazley assigned its rights to EXP after
the settlement was paid, and there was no waiver. However, prior to assigning their rights to EXP
one year after settling the Sitz complaint, Beazley had not sent a reservation of rights letter in
connection with the Sitz complaint. Beazley settled the underlying case without alleging other
insurers were required to contribute. Beazley’s failure to reserve its rights against AGLIC could
constitute waiver and bar recovery for EXP as Beazley’s assignee.
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¶ 22 Although, a party’s failure to raise an issue or argument results in waiver or forfeiture of
that issue or argument, waiver is a limitation on the parties, not the court. Cent. Illinois Light Co.
v. Home Ins. Co., 213 Ill. 2d 141, 152 (2004). Here, we choose to address the issues and arguments
raised on appeal in the interest of preserving a sound and uniform body of precedent. Id.¶ 23 B. Primary and Excess Coverage
¶ 24 We note the difference between a “primary” coverage insurance policy and an “excess”
coverage insurance policy. Primary insurance coverage is coverage whereby, under the terms of
the policy, liability attaches immediately upon the happening of an event that gives rise to liability.
Certain Underwriters at Lloyd's, London v. Cent. Mut. Ins. Co., 2014 IL App (1st) 133145, ¶ 2.
Excess insurance coverage only attaches after the predetermined primary amount has been
exhausted, and it provides a secondary level of coverage designed to protect the insured in
situations where a judgment or settlement exceeds the primary policy limit of liability. Kajima,
227 Ill. 2d at 114 citing Roberts v. Northland Insurance Co., 185 Ill.2d 262, 275 (1998). “True”
excess coverage also known as “following form” or “specific” excess coverage, is purchased by
the insured in separate contracts that are written by design. Id at 115. An umbrella insurance policy
is a form of excess liability insurance coverage, and it may offer broader coverage than the
underlying primary carrier in some circumstances Id. “Other insurance” provisions attempt to
render a policy that otherwise would be considered “primary” as “excess,” usually with statements
declaring the insured's coverage to be excess over any other valid and collectible insurance the
insured has obtained.” (Internal quotation marks omitted) Capitol Constr. Sols., Inc. v. Selective
Ins. Co. of S.C., 2022 IL App (1st) 200808-U, ¶ 22.
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¶ 25 If an insured has more than one primary insurance carrier, Illinois law grants the insured
the right to “tender defense of an action to one insurer alone,” also known as the targeted tender
rule. John Burns Construction Co. v. Indiana Insurance Co., 189 Ill. 2d 570, 578 (2000). The
targeted tender rule allows for an insured with multiple primary policies to choose one of the
carriers to defend and indemnify the insured against any claim. Kajima, 227 Ill. 2d at 107. Despite
the targeted tender rule only applying to primary coverage, we again note that “other insurance”
provisions attempt to render coverage that would otherwise be considered “primary” as “excess.”
River Valley I, LLC v. Central Insurance Companies, 396 Ill. App. 3d 480, 487 (2009).
“Other insurance clauses came about in response to the targeted tender doctrine. [Citation.]
The targeted tender doctrine allows an insured who is covered by multiple and concurrent
primary insurance policies to select, or target, which insurer he wants to defend and
indemnify him regarding a specific claim. The insured essentially can choose which insurer
among his several co-insurers will participate in the claim against him; he can elect one
insurer over another, or, even deactivate coverage with an insurer he previously selected in
order to invoke exclusive coverage with another. This allows an insured who has paid for
multiple forms of coverage to protect his interests, namely, keeping future premiums low,
optimizing loss history and preventing policy cancellation among the insurers he chooses.”
In an effort to override the right of the insured to choose among co-insurers, insurers
developed "other insurance" excess provisions in their policies. These provisions attempt
to render otherwise primary insurance as excess over any other collectible insurance, most
often with statements in the policy that declare the insurer's coverage to be excess over any
other valid and collectible insurance available to the insured. In such instances, the other
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insurance excess provision requires the insured to exhaust the policy limits of the other co-
insurers before being able to trigger a defense and indemnification duty in that insurer. Id.¶ 26 Here, EXP argues that AGLIC’s other insurance provision acted as a primary policy when
Arrow Road’s agreement with Paschen required $2 million in CGL coverage, and the BITCO
policy accounted for only $1 million of the CGL coverage. EXP contends Coverage A insured
damages in excess of the BITCO policy and the Other Insurance Provision states the AGLIC is the
primary policy. In response, AGLIC argues that EXP’s recovery is barred by the doctrine of
horizontal exhaustion, neither AGLIC’s “other insurance” provision nor the Arrow Road
subcontract establish that AGLIC is responsible for primary coverage, and the Beazley policy is a
primary policy that attempts to become an excess policy by including an “other insurance”
provision.
¶ 27 To support their argument, AGLIC cites North River Ins. Co. v. Grinnell Mut. Reinsurance
Co., 369 Ill. App. 3d 563 (1st Dist. 2006). In North River, a subcontractor listed as an additional
insured, brought an action claiming the named insured was obligated to contribute to the settlement
because the subcontract required the named insurer to provide CGL coverage that was primary
and umbrella coverage for the additional insured. Id at 566-568. The additional insured argued that
the umbrella coverage was meant to provide coverage that was primary and dropped below the
additional insured’s own CGL policy. The court held that nothing in the subcontractor agreement
could be construed as requiring the excess coverage to be exhausted before the additional insured’s
CGL coverage. Id at 570.
¶ 28 Similar to the additional insured in North River, EXP has failed to demonstrate where the
subcontract indicates the umbrella coverage was required to drop down below the primary policies
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maintained by additional insureds. AGLIC’s excess policy is entitled “Coverage A - Excess Follow
Form Liability Insurance.” The policy provides:
“Under Coverage A, we will pay on behalf of the insured, those damages covered
by this insurance in excess of the total applicable limits of underlying insurance.
With respect to Coverage A, this policy includes:
1. The terms and conditions of underlying insurance to the extent
such terms and conditions are not inconsistent or do not conflict
with the terms and conditions referred to in Paragraph 2 below;
and
2. The terms and conditions that apply to Coverage A of this policy.
Notwithstanding anything to the contrary contained above, if
underlying insurance does not apply to such damages, for reasons
other than exhaustion of applicable limits of insurance by payment
of loss, then Coverage A does not apply to such damages.” (C 41)
¶ 29 AGLIC’s other insurance provision states:
“If other insurance applies to damages that are also covered by this policy, this
policy will apply excess of the other insurance. However, this provision will not
apply:
a. If the other insurance is written to be excess of this policy; or
b. With respect to Coverage A only, if the named insured has agreed
in a written contract to carry insurance to apply prior to and be
non­contributory with that of another person or organization's
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insurance, but only as respect to damages arising out of the insured
operations or work on behalf of the named insured performed
under such written contract. The limits available to the other
person or organization will be the lesser of the policy limits or the
minimum limits required by such written contract. In that case,
other insurance of that person or organization will apply as excess
and not contribute prior to the insurance afforded by this policy.
Nothing herein will be construed to make this policy subject to the
terms, conditions and limitations of such other insurance.”
¶ 30 “An examination of the premiums generally charged for umbrella coverage * * * reflects
an intent that umbrella policies serve a different function. [Citation] [E]xcess premiums are lower
because excess coverage is, by its very nature, not supposed to be triggered until the underlying
policy has been exhausted up to its limits. [Citation.]” Kajima 227 Ill. 2d 102, 116 (2007). Arrow
Road maintained a CGL policy with BITCO and an umbrella policy with AGLIC. The subcontract
required that the CGL coverage have limits of $2 million and umbrella coverage with limits of $5
million. Under Kajima, there is a presumption that the umbrella policy is true excess. Id.¶ 31 Furthermore, the BITCO policy stated that “coverage provided to the additional insured
shall be on a primary, non-contributory basis,” but the AGLIC policy did not have such a provision.
EXP is asking this court to find the “other insurance” provision in the AGLIC policy to be evidence
that AGLIC was required to provide primary coverage, but we find the provisions in the Beazley
policy more significant. Beazley’s policy contains a provision titled “Defense, Settlement, And
Investigation of Claims.” The provision states that Beazley has “the right and the duty to defend
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*** any claim against the insured seeking damages which are payable under the terms of this
policy.” Beazley has an “other insurance” provision that states:
“This Insurance shall apply in excess of:
A. any other valid and collectible insurance available to any Insured, including,
but not limited to, any project specific professional liability and/or contractors
pollution liability insurance; and
B. any self insured retention or deductible portion thereof
unless such other insurance is written only as specific excess insurance over the
Limit of Liability of this Policy”.
¶ 32 We find this court’s analysis in Capitol Constr. Sols., Inc. v. Selective Ins. Co. of S.C., 2022
IL App (1st) 200808-U, instructive. In Capitol, a contractor sought defense from a subcontractor’s
insurer after a workplace injury. Id ¶6-11. The insurer refused to tender a defense, and
subsequently another subcontractor’s insurer accepted defense on the contractor’s behalf. Id ¶11-
12. The contractor filed suit seeking an order declaring the initial subcontractor’s insurer breached
its duty to defend and indemnify the contractor. Id ¶13. The circuit court entered an order granting
summary judgment in favor of the subcontractor’s insurer. Id ¶14. On appeal, this court held that
the targeted tender rule did not allow the contractor to tender its defense to an insurer that only
provided excess coverage. The court analyzed the subcontract at issue and found that the
subcontract only required the subcontractor’s insurer to provide excess coverage. Id ¶37.
¶ 33 Like the subcontract in Capitol, the subcontract here required AGLIC to provide umbrella
liability insurance, and the language in the subcontract does not require the umbrella coverage to
serve as primary insurance. Instead, the subcontract stated the umbrella coverage will follow the
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form of the primary coverage and “shall be *** excess of the underlying policy limits.” Following
Illinois case law, we find that the AGLIC policy was “true” excess coverage and was not required
to provide primary insurance coverage based on either Arrow Road’s failure to procure the
requisite $2 million CGL coverage or Beasley’s settlement of claims against EXP.
¶ 34 Having determined that the AGLIC policy was a “true” excess insurance policy providing
no coverage until all primary policies are exhausted, we do not need to address EXP’s argument
that the circuit court erred in finding the professional services exclusion negated coverage for EXP.
¶ 35 III. CONCLUSION
¶ 36 For the foregoing reasons, the judgment of the circuit court granting AGLIC’s motion for
summary judgment and denying EXP’s cross motion for summary judgment is affirmed.
¶ 37 Affirmed.
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