Country Mutual Insurance Company v. Durkin Electric Company, Inc

2022 IL App (1st) 210293-UFIFTH DIVISION
August 5, 2022
No. 1-21-0293
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 JUDICIAL DISTRICT
COUNTRY MUTUAL INSURANCE ) Appeal from the
COMPANY, ) Circuit Court of Cook County.
)
Plaintiff-Appellee and Cross Appellant, )
)
v. ) Case No. 2017 CH 08905
)
DURKIN ELECTRIC COMPANY, INC., ) Honorable Raymond W. Mitchell,
COMMONWEALTH EDISON COMPANY, ) Judge, Presiding.
GEORGE MOYETT, and PAOLA VARGAS )
)
Defendants )
)
(Durkin Electric Company, Inc. )
Defendant-Appellant and Cross-Appellee). )
JUSTICE CONNORS delivered the judgment of the court.
Justices Hoffman and Cunningham concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order that denied plaintiff’s
motion for partial summary judgment and found that
defendant was an additional insured under the policy was
proper. The circuit court’s order that denied defendant’s
motion for summary and found that plaintiff did not have a
duty to defend or indemnify defendant under the policy was
proper; affirmed.
¶2 This appeal involves a declaratory judgment action between appellant/cross-appellee,
Durkin Electric Company (Durkin), and appellee/cross-appellant, Country Mutual Insurance
No. 1-21-0293
Company (Country) related to insurance coverage in an underlying personal injury action filed
against Durkin. Durkin tendered defense and indemnity of the underlying action to Country.
Thereafter, Country filed a complaint for a declaratory judgment against Durkin, in which it
requested the court declare that Durkin was not an additional insured, and that Country did not
have an obligation to defend Durkin under the insurance policy between Country and B3
Integrated Solutions (B3), who was Moyett’s employer. Durkin now appeals from the circuit
court’s order that denied its motion for summary judgment on Country’s complaint for
declaratory judgment and found that Country did not have a duty to defend or indemnify Durkin
in the underlying case. In Country’s cross-appeal, it appeals the circuit court’s order that denied
its motion for partial summary judgment and found that Durkin was an additional insured under
the policy at issue. We affirm.
¶3 I. BACKGROUND
¶4 Underlying Case
¶5 In the underlying case, in early 2017, plaintiffs George Moyett and Paola Vargas filed
a complaint against Durkin, Commonwealth Edison Company (ComEd), Mid City Nissan, Inc.
d/b/a Berman Nissan of Chicago, Inc. (Mid City), and Tribus Services, Inc f/k/a Corix Utility
Services. Plaintiffs subsequently filed amended complaints, and in their fourth amended
complaint they alleged claims for negligence and loss of consortium on behalf of Moyett’s wife,
Vargas, against each defendant. They alleged that Mid City owned and operated property at 3456
North Kedzie Avenue in Chicago and that ComEd supplied, operated, and owned the mechanical
and electrical equipment on the property. ComEd contracted with Durkin to provide services for
the electrical equipment located at the property. On April 5, 2017, ComEd’s mechanical and
electrical equipment malfunctioned or was defective. The equipment caught fire and injured
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Moyett. As for the negligence claim against Durkin, plaintiffs alleged that Durkin breached its
duty and was negligent because it failed to maintain the mechanical and/or electrical equipment,
supplied defective mechanical and/or electrical equipment, and failed to warn Moyett of the
dangerous and/or defective condition posed by the equipment. As a result, Moyett sustained
permanent and severe injuries.
¶6 In November 2017, Durkin filed a third-party complaint against B3 in the underlying
case. It alleged that B3 was Moyett’s employer and he sustained injuries while performing job
related duties for B3. B3 had a duty to exercise ordinary care and prevent and avoid injuries and
Moyett’s alleged injuries were due to B3’s failure to exercise ordinary care. Moyett’s injuries
were caused, in whole or in part, by B3’s failure to, inter alia, provide equipment to Moyett,
train Moyett, provide a safe workplace, supervise Moyett, and provide adequate safeguards to
prevent him from injury while working.
¶7 In February 2018, ComEd filed a third party complaint for contribution in the
underlying case against B3. It alleged as follows. B3 was a subcontractor of Durkin, and Moyett
was an employee or agent of B3. B3 was responsible for directing and supervising Moyett’s
work at the incident site and had a duty to exercise ordinary care for the safety of Moyett. If
Moyett was injured, it was caused by B3’s negligent acts or omissions, including failing to do the
following: properly manage and supervise Moyett’s work, properly instruct him, provide proper
equipment and a safe workplace, maintain the mechanical and electrical equipment, warn Moyett
of the dangerous and defective condition posed by the equipment, instruct its employees on
proper safety measures, provide Moyett with sufficient training on work site safety, and properly
train and instruct him. ComEd alleged that if Moyett was injured, his injuries incurred as a direct
and proximate result of B3’s negligent acts or omissions.
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¶8 In April 2019, Tribus filed a third-party complaint against B3 in the underlying case.
It alleged that Moyett was acting within his scope of employment with B3. Any injuries or
damages were caused by B3’s negligent acts or omissions.
¶9 Complaint for Declaratory Judgment
¶ 10 In June 2017, Country filed a complaint for declaratory judgment against Durkin,
ComEd, Moyett, and Vargas, and then in August 2017 and December 2017, it subsequently filed
amended and second amended complaints that contained similar allegations. Country alleged that
on February 5, 2017, Country and B3 entered into a contract for commercial general liability
insurance (policy). Durkin and ComEd both tendered their defense in the underlying case to
Country and each asserted that it was an additional insured under the policy pursuant to a
certificate of insurance and a contract that Durkin had with B3.
¶ 11 Country alleged that Durkin did not qualify as an additional insured under the policy
because the certificate of insurance was issued on April 5, 2017, which was after the incident had
occurred. Country alleged that ComEd was never added as a potential additional insured under
the policy. Country also alleged that even if Durkin had been added as an additional insured to
the policy before the incident, the policy did not provide coverage for Durkin for the underlying
case because its coverage was limited to “where the liability of [Durkin] is caused, in whole or in
part, by the acts or omissions of B3.” B3 was not mentioned in the underlying case and did not
have a role in creating or maintaining the alleged defective mechanical and electrical equipment
as alleged by Moyett in the underlying case. Country requested the court declare that Durkin and
ComEd were not additional insureds under the policy and that Country did not have an
obligation to defend Durkin and ComEd in the underlying case.
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¶ 12 Country attached to the complaint for declaratory judgment a document entitled
“Agreement between Contractor and Subcontractor,” which provided that on October 6, 2015,
Durkin, the contractor, and B3, the subcontractor, entered into an agreement whereby B3 would
purchase and maintain, among other things, commercial general liability insurance. It stated that
the policy must include an endorsement identifying Durkin as an additional insured.
¶ 13 Country Mutual Policy
¶ 14 To Country’s complaint for declaratory judgment, it also attached the policy between
B3 and Country, which provided that B3 was the named insured, and the policy period was
between October 22, 2016, and October 22, 2017.
¶ 15 In Section II of the policy, under the “Coverages” section, it states that the insurance
applies to “bodily injury” and “property damage” only if “(b) The ‘bodily injury’ or ‘property
damage’ occurs during the policy period.” It also provides that “[w]e will pay those sums that the
insured becomes legally obligated to pay as damages because of ‘bodily injury’, ‘property
damage’ or ‘personal and advertising injury’ to which this insurance applies” and “[w]e will
have the right and duty to defend the insured against any ‘suit’ seeking those damages.”
¶ 16 The policy contains an endorsement entitled “Additional Insured-Multiple Interests.”
It states, in relevant part, as follows.
“Name of Person or Organization:
An entity listed as an additional insured on a certificate of insurance issued and
approved by us during this policy period.
A. Who is an Insured is amended to include as an additional insured any person(s)
or organization(s) shown in the Schedule, but only with respect to liability arising
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out of your operations or premises owned, leased, or rented by you, subject to the
following.
If the person(s) or organization(s) shown in the Schedule:
***
10. Is a person or organization for whom you are performing operations and
with whom you have agreed in a written contract or agreement that such person
or organization be included as an additional insured on your policy, this
insurance is limited to its liability for ‘bodily injury’, ‘property damage’ or ‘personal
and advertising injury’ caused, in whole or in part, by:
a. Your acts or omissions; or
b. The acts or omissions of those acting on your behalf;
in the performance of your ongoing operations performed for that insured. A person’s
or organization’s status as an insured under this paragraph ends when your operations
for that insured are completed or the contractor’s agreement is terminated.”
(Emphasis in original.)
¶ 17 The policy contains another endorsement entitled “Additional Insured-Owners,
Lessees, or Contractors – Scheduled Person or Organization.” Under the header “Name of
Additional Insured Person(s) or Organization(s),” it states: “An entity listed as an additional
insured on a Certificate of insurance issued and approved by us during this policy period.” It also
states as follows:
“Section II - Liability is amended as follows:
A. The following is added to Paragraph C. Who Is An Insured:
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3. Any person(s) or organization(s) shown in the Schedule is also an additional
insured, but only with respect to liability for ‘bodily injury’, ‘property damage’ or
‘personal and advertising injury’ caused, in whole or in part, by:
a. Your acts or omissions; or
b. The acts or omissions of those acting on your behalf;
in the performance of your ongoing operations for the additional insured(s) at the
location(s) designated above.”
Country also attached to its complaint for declaratory judgment a document entitled “Certificate
of Liability Insurance” between B3 and Country, which is dated April 5, 2017, and listed Durkin
as an “additional insured.” The certificate provided that the policy period was October 22, 2016,
to October 22, 2017.
¶ 18 Country’s Motion for Partial for Summary Judgment
¶ 19 Country filed a motion for partial summary judgment, in which it argued that the court
should grant summary judgment in its favor because it did not have a duty to defend Durkin under
the policy. It contended that Durkin was not identified as an additional insured on the policy until
after the accident occurred and that, therefore, Durkin was not covered under the policy. Country
asserted that Durkin was identified as an additional insured on the certificate of insurance at 11:42
a.m., on April 5, 2017, which was about one hour after the accident had occurred. Country argued
that Durkin could not rely upon the certificate of insurance issued after the accident to demonstrate
that it was an additional insured under the Country policy.
¶ 20 To support its argument that the certificate of insurance was issued after the accident,
Country asserted that the accident occurred at about 10:51:38 a.m. on April 5, 2017, and that at
11:30 a.m. that day, Country’s agent, Troy Vidovic, received a telephone call from a B3 employee,
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who requested that Country issue an insurance certificate naming Durkin as a “certificate holder”
and “additional insured.” To support the assertion, Country attached an affidavit by Vidovic, in
which he averred that B3 had a businessowner’s liability insurance coverage policy with Country
for a policy period of October 22, 2016, to October 22, 2017. At about 11:30 a.m. on April 5, 2017,
a B3 employee informed Vidovic of the accident and requested that Durkin be added to the policy
as an additional insured. At 11:42 a.m. on April 5, 2017, Vidovic added Durkin to the policy as a
certificate holder and an additional insured. No other certificate of insurance naming Durkin as a
certificate holder or additional insured was issued or requested under the policy during the policy
period. Country also attached to its motion for partial summary judgment the discovery deposition
of Daniel Durkin, the general superintendent of Durkin, who testified that he received the
certificate via email from B3’s employee at 11:48 a.m. on April 5, 2017.
¶ 21 In response to Country’s motion for partial summary judgment, Durkin stated that
Country’s policy with B3 named as an additional insured any entity whom B3 agreed to name as
an additional insured and for whom Country issued a certificate of insurance during the relevant
policy period. Durkin asserted that B3 entered a written agreement with Durkin to name Durkin as
an additional insured under the policy and that Country issued a certificate of insurance naming
Durkin as an additional insured for the policy period of October 22, 2016, to October 22, 2017.
Durkin argued that coverage should not be invalidated because a certificate of insurance was issued
after the alleged underlying occurrence.
¶ 22 Circuit Court’s Order on Country’s Motion for Partial Summary Judgment
¶ 23 On June 24, 2019, the circuit court issued a written order that denied Country’s motion
for partial summary judgment, finding that the issuance of the certificate of insurance after
Moyett’s accident did not preclude Durkin’s qualification as an additional insured. In doing so, the
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court stated the policy required that the additional insured is a “person or organization for whom
you are performing operations and with who you have agreed in a written contract or agreement
that such person or organization be included as an additional insured on your policy.” B3 agreed
to provide insurance to Durkin under the parties’ subcontract. The court also stated that the policy
provided additional insured coverage to “ ‘an entity listed as an additional insured on a certificate
of insurance issued and approved by us during this policy period.’ ” The court noted that the
“certificate of insurance issued indicates ‘it confers no rights on the certificate holder’ and ‘does
not affirmatively or negatively amend, extend, or alter coverage afforded by the policies below.’ ”
The court concluded that “[t]he proposition that the issuance of a certificate of insurance may
disclaim the conferral of coverage rights, yet simultaneously proscribe the effective dates of
coverage under the policy is incongruous.”
¶ 24 Country’s Motion to Reconsider the June 24, 2019, Order
¶ 25 Country filed a motion to reconsider the court’s June 24, 2019, order, in which it argued
that the court erred when it concluded that the issuance of a certificate of insurance by Country
after Moyett’s injuries had already occurred did not preclude Durkin from being an additional
insured. Country also argued that the court did not rule on its fortuity argument that an insured
who acquires insurance after a known loss should not be entitled to insurance coverage.
¶ 26 Circuit Court’s Order on Country’s Motion to Reconsider the June 24, 2019, Order
¶ 27 In the circuit court’s December 6, 2019, written order, it denied Country’s motion to
reconsider. The court stated that “as long as the policy of insurance evidenced an intent to include
an entity as an additional insured, the fact that a certificate of insurance issued after the loss does
not defeat a party’s status as an additional insured.” (Emphasis in original.) The court stated that
“[t]his conclusion is consistent with the language of the policy which describes an additional
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insured as an ‘entity listed as an additional insured on a certificate of insurance and approved by
us during this policy period.’ ” (Emphasis in original.) The court concluded:
“It is hornbook law that the policy controls coverage and that a certificate of insurance
is merely evidence of insurance. 3 Couch on Insurance 3d § 40:31. When the certificate
provides that it is evidencing coverage for the entire policy period, the date that the
certificate was issued is immaterial so long as it was issued within the policy period. The
‘effective date’ on the certificate is merely its issuance date; it is not the effective date of
the policy of insurance.”
¶ 28 Durkin’s Motion for Summary Judgment
¶ 29 In January 2020, Durkin filed a motion for summary judgment, asserting that Country
must defend and indemnify Durkin in the underlying case. It stated that the court had already
determined that Durkin was an additional insured under the policy. Durkin stated that to deny
coverage, Country relied on the language of the policy that stated that additional-insured
coverage is limited to claims “with respect to liability for ‘bodily injury’***caused in whole or
in part, by: a. Your acts or omissions; or b. The acts or omission of those acting on your behalf;
in the performance of your ongoing operations for the additional insured(s).” Durkin claimed that
Moyett pled multiple theories “under which Durkin’s liability would be based in part on B3’s
acts or in which B3’s alleged actions would be a part of the cause of Moyett’s alleged bodily
injury when considered in light of ComEd’s third-party complaint.”
¶ 30 Durkin asserted that in the underlying case, Moyett’s allegations implied that he was
injured while working with B3 and that to determine whether there is a duty to defend, the court
must consider all relevant facts in the underlying pleadings, including third-party complaints. It
stated that in ComEd’s third-party complaint, ComEd pled multiple allegations against B3,
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including that Moyett was working for B3 at all relevant times and that Moyett’s alleged injuries
were the direct and proximate result of B3’s acts and omissions in that B3 failed to, among other
things, supervise, oversee, instruct, and provide a safe workplace for Moyett. Durkin requested
the court find that Moyett’s underlying complaint and ComEd’s third-party complaint pled
allegations against B3 that were potentially covered under the policy such that Country must
defend Durkin.
¶ 31 In response to Durkin’s motion for summary judgment, Country argued that to
establish coverage under the policy, Durkin must show that “its liability for the bodily injury to
[Moyett] was caused, in whole or in part, by B3’s acts or omissions,” which it could not do based
on Moyett’s allegations in the underlying complaint. Country asserted that there was nothing in
Moyett’s complaint that referred to any negligent acts or omissions by B3.
¶ 32 Circuit Court’s Ruling on Durkin’s Motion for Summary Judgment
¶ 33 In the circuit court’s May 13, 2020, written order, it denied Durkin’s motion for
summary judgment and found that Country did not have a duty to defend or indemnify Durkin in
the underlying case. In doing so, the court stated that the policy provided that its additional
insurance coverage was “limited to the additional insured’s liability for bodily injury caused in
whole or in part by: (1) B3 Integrated Solutions’ acts or omissions or (2) the acts or omissions of
those acting on B3 Integrated Solutions’ behalf in the performance of B3 Integrated Solutions’
ongoing operations performed for the insured.” The court concluded that the underlying
complaint failed to allege, or potentially allege, any facts suggesting that Moyett’s injury was
caused in whole or in part by B3’s actions or omissions as required to trigger additional
insurance coverage under the policy.
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¶ 34 As for ComEd’s third-party complaint against B3, the court noted that ComEd’s
third-party complaint undisputedly alleged that Moyett’s injury was caused in whole or in part by
B3 to fall within the policy. The court, however, concluded that it would not consider the third-
party complaint, noting it was brought by a putative additional insured and filed after Country
filed the declaratory judgment action seeking to exclude coverage. It stated that Durkin could not
rely on ComEd’s third-party complaint to support its coverage position, noting that both ComEd
and Durkin were similarly situated putative additional insureds and their third-party complaints
against B3 in the underlying case were almost identical. The court also noted that Durkin pointed
to no other evidence or pleadings to support its position that Moyett’s alleged injury was caused
in whole or in part by B3.
¶ 35 The court also stated that section 10(b) of the policy “establishes coverage for
an additional insured’s liability for bodily injury caused in whole or in part by the acts or
omissions of those acting on B3 Integrated Solutions’ behalf.” (Emphasis in original.) It noted
that Durkin had argued that Moyett’s own actions as an employee of B3 invoked Country’s duty
to defend under this section and that Durkin had cited its affirmative defense of contributory
negligence alleged in the underlying case. It stated however that “section 10(b) conveys coverage
for an additional insured’s liability for bodily injury caused in whole or in part by the acts or
omissions of those acting on B3 Integrated Solutions’ behalf.” (Emphasis in original.) It stated
that “[t]he contributory negligence allegations, taken as true, do not constitute the cause, in
whole or in part, of Durkin’s alleged liability for Moyett’s bodily injury.”
¶ 36 Durkin’s Motion to Reconsider the Circuit Court’s May 20, 2020, Order
¶ 37 Durkin filed a motion to reconsider the court’s May 20, 2020, order, in which it
argued that the court misinterpreted section 10 of the policy when it stated that to establish
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coverage, the policy required that Durkin’s “liability be caused in whole or in part by B3’s acts
or omissions.” Durkin asserted that the proper reading of the policy was that Durkin had
“coverage when the alleged bodily injury was caused by B3’s acts or the underlying plaintiff’s
acts,” who was acting on B3’s behalf. Durkin also contended that the court had found that the
“caused by” language in the policy required that B3’s actions be the sole proximate cause of
Durkin’s liability. It argued however that the “caused by” language only required a showing that
“but for” the action, the bodily injury and the associated liability would not have happened.
Durkin stated that “when an employee is working for his employer when he is injured, his
actions are always on his employer’s behalf and a ‘but for’ cause of his injury.”
¶ 38 Durkin also argued that under Illinois law, the court should have considered the
silence in the plaintiff’s complaint regarding his employer’s acts or omissions in context of the
worker’s compensation laws. As for ComEd’s third party complaint in the underlying case,
Durkin argued that the court should have reviewed the third-party complaint because it did not
bolster Durkin’s claim and was not a self-serving document used to create coverage.
¶ 39 Circuit Court’s Order on Durkin’s Motion to Reconsider the May 20, 2020, Order
¶ 40 In the circuit court’s February 26, 2021, written order, it denied Durkin’s motion to
reconsider. In doing so, the court stated that “[t]he policy extends coverage only for bodily injury
caused in whole or in part—by an act or omission—of B3 or those acting on its behalf” and “[o]n
its face, this requires more than simply establishing the underlying plaintiff’s employment with
B3.” The court stated that even if the underlying plaintiff was “acting on B3’s behalf” when he
incurred his injury, that was not enough to extend coverage, as the “policy limits the insurance to
Durkin’s liability for a bodily injury caused in whole or in part by the acts or omissions of those
acting on B3’s behalf.” (Emphasis in original.) It stated that Durkin’s reliance on certain acts or
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omissions of the underlying plaintiff as a defense to its liability in the underlying litigation is
insufficient to support coverage.
¶ 41 As for Durkin’s argument that silence regarding B3’s conduct in the underlying
complaint should be construed as a result of immunity under workers’ compensation laws, the
court noted that burden was on the additional insured to establish coverage, as the policy
involved limiting language in its coverage grant. The court stated that “[w]ithout any suggestion
in the underlying complaint to support an act or omission of B3, Durkin’s reliance on potential
tort immunity is not compelling.” The court also concluded that Durkin was precluded from
relying on ComEd’s third-party complaint to establish Country’s duty to defend. It stated that the
third-party complaint was filed after the declaratory judgment action was filed and was “brought
by a similarly situated putative insured” and only “serve[d] to bolster Durkin’s coverage position
with additional facts entirely absent from the underlying complaint.” This appeal followed.
¶ 42 II. ANALYSIS
¶ 43 Initially, as previously discussed, the circuit court denied Country’s motion for partial
summary judgment and found that the issuance of the certificate of insurance after Moyett’s
accident did not preclude Durkin’s qualification as an additional insured. In Country’s cross-
appeal, it argues that the circuit court erred when it found that Durkin was an additional insured
under the policy. Country asserts that if we find that Durkin was not an additional insured under
the policy then we need not address the issues raised by Durkin in its appeal from the circuit
court’s order that found that Country did not have a duty to defend under the policy. We will
therefore address Country’s cross-appeal first.
¶ 44 Country’s Cross-Appeal
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¶ 45 Country argues that the circuit court erred when it denied its motion for summary
judgment and concluded that Durkin was an additional insured under the policy. Country
contends that the certificate of insurance, which would have conferred additional insured status
on Durkin, was not issued until about one hour after the accident on April 5, 2017, and that,
therefore, Durkin was not an additional insured under B3’s policy. Country asserts that Durkin is
precluded from coverage as an additional insured under the “known loss” doctrine because the
certificate of insurance was issued after the incident.
¶ 46 “Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.” Outboard Marine Corp. v.
Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). A circuit court may properly grant
summary judgment where “the pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2020). Our review of a
circuit court’s ruling on a motion for summary judgment is de novo. Clark Investments, Inc. v.
Airstream, Inc., 399 Ill. App. 3d 209, 213 (2010). Further, “the construction of an insurance
policy and a determination of the rights and obligations thereunder are questions of law for the
court and appropriate subjects for disposition by summary judgment.” Konami (America), Inc. v.
Hartford Insurance Co. of Illinois, 326 Ill. App. 3d 874, 877 (2002).
¶ 47 “An insurance policy is a contract, and the rules governing the interpretation of
contracts apply to the interpretation of insurance policies.” Amico v. Allstate Corp., 2020 IL App
(1st) 191421, ¶ 11. “The primary objective in construing the language of an insurance policy is to
ascertain and give effect to the intentions of the parties as expressed in their agreement.” Pekin
Insurance Co. v. CSR Roofing Contractors, Inc., 2015 IL App (1st) 142473, ¶ 26. “If the terms
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of a policy are clear and unambiguous, they must be given their plain and ordinary meaning.”
American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997). However, if the language
of a policy is ambiguous, it will be strictly construed against the insurer who drafted the policy.
Amico, 2020 IL App (1st) 191421, ¶ 11. Further, provisions that exclude or limit are construed
liberally in favor of the insured and against the insurer. Phusion Projects, Inc. v. Selective
Insurance Co. of South Carolina, 2015 IL App (1st) 150172, ¶ 47. It is the insured’s burden to
prove that a claim falls within the coverage of the policy. Travelers Personal Insurance Co. v.
Edwards, 2016 IL App (1st) 141595, ¶ 22.
¶ 48 We find that under the clear and unambiguous language of the policy, Durkin was an
additional insured during the policy period of October 22, 2016, to October 22, 2017. The record
shows that B3, the subcontractor, and Durkin, the contractor, entered into an agreement on
October 6, 2015, whereby the parties agreed that B3 would purchase, among other things,
commercial general liability insurance and that the policy would identify Durkin as an additional
insured. B3’s policy with Country provides that the policy period was between October 22, 2016,
and October 22, 2017, and it states in two endorsements that “an additional insured” is “[a]n
entity listed as an additional insured on a certificate of insurance issued and approved by us
during this policy period.” On April 5, 2017, Country issued a certificate of insurance naming
Durkin as an additional insured, and under the “coverages” section of the certificate, it provides
that Durkin is an additional insured for the policy effective October 22, 2016, and expiring
October 22, 2017. Thus, based on the plain language of the policy, Durkin was an additional
insured during the policy period of October 22, 2016, to October 22, 2017, because it was listed
as an additional insured on a certificate of insurance issued and approved by Country during the
policy period.
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¶ 49 In addition, the certificate of insurance states in capital letters that it “is issued as a
matter of information only,” “confers no rights upon the certificate holder,” and “does not
affirmatively or negatively amend, extend or alter the coverage afforded by the policies below.”
Thus, the certificate of insurance contains language and disclaimers that provide evidence of
Durkin’s insurance coverage as an additional insured on Country’s policy for the policy period,
and the certificate is not a separate and distinct contract for insurance. See U.S. Fidelity &
Guaranty Co. v. Shorenstein Realty Services, LP, 591 F. Supp. 2d 966, 969 (N.D. Ill. 2008)
(where the certificates of insurance were issued after the incident and stated that they were issued
“as a matter of information only,” conferred “no rights upon the certificate holder,” and
acknowledged that they did not “amend, extend or alter the coverage afforded” by the policy, the
court concluded that the certificates “with disclaimers like these are ‘evidence of insurance
coverage, and not [] separate and distinct contract[s] for insurance or part of the insurance
contract’ ”); see also 3 Couch on Insurance § 40:31 (“[g]enerally, a certificate of insurance is not
considered to be a part of the insurance contract; it is merely evidence of the insurance” and “a
certificate of insurance cannot contradict the terms of a policy but instead only provides
information as to the contents of the policy”).
¶ 50 Country argues that the issuance of the certificate itself was the defining event which
created Durkin’s status as an additional insured under the policy. Country asserts that because
the certificate was issued about one hour after the accident on April 5, 2017, Durkin was not
covered at the time of Moyett’s accident under both the known loss doctrine and the terms of the
policy. Under the known loss doctrine, an “insurer has no duty to defend or indemnify the
insured with respect to the known loss ab initio, unless the parties intended the known loss to be
covered.” Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 103 (1992).
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Under the terms of the policy, insurance only applies to bodily injury “which occurs during the
policy period and was not, prior to the policy period, known to have occurred by any insured
listed under Paragraph C1.”
¶ 51 Here, as previously stated, on October 6, 2015, which was before the April 5, 2017,
incident, B3 and Durkin entered into the contract whereby B3 would purchase commercial
general liability insurance. An additional insured under the policy is “[a]n entity listed as an
additional insured on a certificate of insurance issued and approved by us during this policy
period.” The policy period was October 22, 2016, to October 22, 2017. The bodily injury
occurred on April 5, 2017, and the certificate of insurance was issued that same day, both of
which occurred during, and not before, the policy period. Country has not directed the court to
any language in the policy that excludes coverage if the certificate of insurance is issued during
the policy period but after a covered incident. Thus, we are unpersuaded by Country’s argument
that the known loss doctrine and the policy precluded Durkin as an additional insured because
the certificate of insurance was issued one hour after Moyett’s accident. See U.S. Fidelity &
Guaranty Co, LP, 591 F. Supp. 2d at 970 (“The certificates of insurance did not have to issue
prior to the [incident] for defendants additional insured status to attach.”). Accordingly, the
circuit court properly denied Country’s motion for summary judgment and found that Durkin
was an additional insured.
¶ 52 Durkin’s Appeal
¶ 53 Country’s Duty to Defend
¶ 54 Durkin contends that the circuit court erred when it denied its motion for summary
judgment and found that Country did not have a duty to defend or indemnify Durkin in the
underlying case. Durkin argues that the underlying pleadings, including the allegations contained
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in ComEd’s and Tribus’s third-party complaints and the relevant policy and contract language,
show that the policy covers Durkin as an additional insured for the incident. Durkin further
contends that to trigger coverage, the policy only required that B3’s acts or the acts of someone
acting on B3’s behalf be a cause of the underlying plaintiff’s alleged bodily injuries. Durkin
asserts the court misinterpreted the policy when it analyzed what triggers coverage under section
10(b) of the “Additional Insured - Multiple Interests Endorsement,” as it read the policy as
requiring that Durkin’s “liability have been caused in whole or in part by B3’s acts or
omissions.” (Emphasis in original.) Durkin asserts that “bodily injury” rather than “liability” is
modified by the phrase “caused, in whole or in part, by” and that “Durkin is entitled to coverage
for claims against it where B3’s negligence is alleged to have caused Moyett’s bodily injury.”
¶ 55 “In a declaratory judgment action when the issue is whether the insurer has a duty to
defend, courts first look to the allegations in the underlying complaint and compare those
allegations to the relevant provisions of the insurance policy.” Core Construction Services of
Illinois, Inc. v. Zurich American Insurance Co., 2019 IL App (4th) 180411, ¶ 25. “If the facts
alleged in the underlying complaint fall within, or potentially within, the policy’s coverage, the
insurer’s duty to defend arises.” Outboard Marine Corp., 154 Ill. 2d at 108. Although the
threshold for pleading duty to defend is low “this threshold is not nonexistent: an insurer may
justifiably refuse to defend against the underlying action if the complaint clearly does not allege
facts potentially within coverage.” L.J. Dodd Construction, Inc. v. Federated Mutual Insurance
Co., 365 Ill.App.3d 260, 262 (2006). “In making this determination, the allegations in the
underlying complaint must be liberally construed in favor of the insured.” Core Construction
Services of Illinois, Inc., 2019 IL App (4th) 180411, ¶ 25.
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¶ 56 The policy’s additional insured insurance coverage states “this insurance is limited to
its liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in
whole or in part, by: a. Your acts or omissions; or b. The acts or omissions of those acting on
your behalf; in the performance of your ongoing operations performed for that insured.”
Applying the principles above, we conclude that the circuit court properly determined that
Country did not have a duty to defend Durkin in the underlying action. The underlying
complaint does not contain any allegations against B3 nor any allegations that Moyett’s injuries
were caused in whole or in part by an act or omission of B3. Under the plain terms of the policy,
the language “caused in whole or in part, by” means that Durkin’s “liability for bodily injury”
must be “caused in whole or in part, by” some act or omission of B3 or someone acting on B3’s
behalf. However, there are no facts in the complaint that suggest that any act or omission of B3
or someone acting on B3’s behalf caused, in whole or in part, Moyett’s injuries or Durkin’s
liability. There are no allegations that suggest B3’s act or omission caused in whole or in part the
defective equipment that caught fire or caused in whole or in part Moyett’s injuries.
¶ 57 Durkin asserts that because the policy did not define “caused by,” it only had to show
“but for” causation to trigger the duty to defend. It argues that “but for” causation only required
Durkin to show that the employee would not have been at the place where the injury occurred
but for his employment and that when an employee is working for his employer and injured, his
actions are on his employer’s behalf and a “but for” cause of his injury.
¶ 58 To support Durkin’s argument that “but for” causation applies, it cites American
Economy Insurance Co. v. DePaul University, 382 Ill. App. 3d 172, 178 (2008) and Aetna
Casualty and Surety Company v. Ocean Accident & Guarantee Corporation, Ltd., 386 F.2d 413,
415 (1967). In both cases, the policies contained “arising out of” language and the courts
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concluded that this phrase is broad and that “but for” causation satisfied the language. American
Economy Insurance Co., 382 Ill. App. 3d at 178; Aetna Casualty and Surety Company, Ltd., 386
F.2d at 415. However, the policy language at issue does not contain the phrase “arising out of”
but rather states that additional insured insurance “is limited to its liability for ‘bodily
injury’***caused, in whole or in part, by” an act or omission of B3 or an act or omission of
those acting on B3’s behalf. (Emphasis added.) Thus, we are unpersuaded by Durkin’s argument
that the “caused, in whole or in part” language in the policy requires only a “but for” causation,
or a showing that “but for” Moyett’s employment with B3, the injury would not have happened.
¶ 59 Further, we note that although federal unpublished decisions are not binding on
Illinois courts, “nothing prevents this court from using the same reasoning and logic as that used
in an unpublished federal decision.” King’s Health Spa, Inc. v. Village of Downers Grove, 2014
IL App (2d) 130825, ¶ 63; see also Asset Exchange II, LLC v. First Choice Bank, 2011 IL App
(1st) 103718, ¶ 19 (“ ‘lower federal court decisions are not binding on Illinois courts, but may be
considered persuasive authority’ ”) (quoting People ex rel. Ryan v. World Church of the
Creator, 198 Ill.2d 115, 127 (2001)).
¶ 60 In AIX Specialty Insurance Co. v. Raincoat Roofing Systems, Inc., No. 1:19-CV-
02385, 2022 WL 742430, at *2-3 (N.D. Ill. Mar. 11, 2022), a case from the federal district court
of the Northern District of Illinois, the policy at issue provided coverage for “an additional
insured only with respect to liability for ‘bodily injury’***caused, in whole or in part, by: 1.
Your acts or omissions; or 2. The acts or omission of those acting on your behalf; in the
performance of your ongoing operations for the additional insured.” The employee died while
working for his employer, Chano’s Roofing Corporation, which was a subcontractor on a
construction project for Raincoat Roofing Systems. Id. at 1. The estate’s underlying complaint
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against Raincoat, did not allege any negligent act by Chano’s, nor any fact to suggest the
potential for Raincoat to be liable based in whole or in part on Chano’s negligence, and the court
found the Chano’s insurance policy did not cover Raincoat as an additional insured. Id. at 6, 8. In
doing so, the court noted “it doesn’t take much for an underlying complaint to trigger a policy’s
additional insured coverage, but there must be some fact alleged, if only indirectly, that
potentially brings the underlying lawsuit within the scope of the policy.” Id. at 6. The court
stated that the Chano’s and its insurer did not agree that the policy would cover an additional
insured for “any bodily injury occurring while Chano’s was performing work under the
[subcontractor agreement]” but agreed that coverage would extend “only for those injuries
‘caused in whole or in part, by [Chano’s] acts or omission.” Id. at 7. There were no allegations in
the underlying complaint that suggested that Chano’s caused any injury merely by showing up
and performing the work it contracted to perform. Id. The court stated that “it is
inconceivable***that an additional insured could be covered for any injury that arises ‘from the
mere fact that an employee…was present and performing the subcontracted work.’ ” Id.¶ 61 In the case at hand, the policy does not show that the parties agreed that additional
insured coverage would be provided for any bodily injury that occurred while B3 was
performing work for Durkin. Rather, the policy states that additional insured coverage is limited
to “its liability for ‘bodily injury’ *** caused, in whole or in part, by” B3’s acts or omissions or
the acts or omissions of those acting on B3’s behalf. Thus, we disagree with Durkin’s contention
that the mere fact that Moyett, an employee of B3, was injured on the jobsite while working for
B3 was sufficient to trigger a duty to defend under the policy. See National Fire Insurance of
Hartford v. Walsh Construction Co., 392 Ill. App. 3d 312, 319 (2009) (the court rejected the
defendant’s contention “that the mere fact that an employee of a primary insured is injured on the
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jobsite is, by itself, sufficient to give rise to an inference of negligence on the part of [named
insurer] so as to trigger a duty to defend” on the part of the insurer).
¶ 62 In addition, we note that “[u]nder certain circumstances, in determining whether there
is a duty to defend or indemnify, a court may look to ‘true but unpleaded facts,’ of which the
insurer has knowledge, that potentially bring the underlying claims within policy coverage.”
Maryland Casualty Co. v. Dough Management Co., 2015 IL App (1st) 141520, ¶ 56. Here,
Durkin has not presented any facts, of which Country has knowledge, regarding B3’s acts or
omissions that caused injury to Moyett or caused the defective equipment that caught fire. The
subcontract between Durkin and B3 included in the record does not provide what responsibilities
B3 had with respect to the equipment or Moyett’s job.
¶ 63 Accordingly, Durkin has not demonstrated that there is additional insured coverage
for the underlying action. Durkin has not demonstrated that B3’s acts or omissions or the acts or
omissions of someone acting on B3’s behalf caused in whole or in part the underlying plaintiff’s
injuries or Durkin’s liability.
¶ 64 Third-Party Complaints
¶ 65 Durkin argues that the circuit court erred when it refused to consider the allegations
contained in ComEd’s and Tribus’s third-party complaint in the underlying action to determine
Country’s duty to defend. In reviewing whether an insurer has a duty to defend, a circuit court
may consider evidence beyond the underlying complaint if in doing so, it does not determine an
issue critical to the underlying action. Core Construction Services of Illinois, Inc., 2019 IL App
(4th) 180411, ¶ 26. However, “there are limitations on whether the trial court must necessarily
consider a third-party complaint prepared by the additional insured seeking coverage.” Pekin
Insurance Co. v. United Contractors Midwest, Inc., 2013 IL App (3d) 120803, ¶ 29. The court
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will decline to consider a third-party complaint filed by a putative additional insured to bolster its
claim of coverage. National Fire Insurance of Hartford, 392 Ill. App. 3d at 322.
¶ 66 ComEd’s third-party complaint filed in the underlying action asserts allegations
against B3, including that B3 failed to, inter alia, properly and safely train, manage, supervise,
and instruct Moyett’s work, failed to provide proper equipment to Moyett, failed to maintain the
equipment, failed to warn Moyett of the defective condition posed by the equipment, and failed
to instruct its employees on proper safety measures. It alleged that Moyett’s injuries were caused
by B3. However, ComEd is a putative additional insured, as it requested coverage from Country
in the underlying action as an additional insured under B3’s policy with Country. 1 Because
ComEd is seeking coverage from Country as a putative additional insured under the policy, the
circuit court did not err when it did not consider the third-party complaint, which Durkin is using
to support its position that Country had a duty to defend Durkin in the underlying case. See
National Fire Insurance of Hartford 392 Ill. App. 3d at 322 (where the court found that the
circuit court properly refused to consider the third-party complaint filed by a party seeking
additional insured coverage against the named insured in deciding whether the insurer had a duty
to defend, it noted that in American Economy Insurance v. DePaul University, 383 Ill. App. 3d
172, 321 (2008), we “declined to allow a putative additional insured to bolster its claim of
coverage by referencing its own third-party complaint”).
¶ 67 In addition, ComEd filed its third-party complaint against B3 after Country filed the
complaint for declaratory action. The timing of this filing suggests that ComEd sought to add
1
As previously stated, in Country’s complaint for declaratory action, it stated that ComEd tendered a defense in the
underlying case to Country, asserting it was an additional insured under the policy. Thereafter, ComEd filed a
motion for summary judgment against Country, asserting that it was an additional insured on the policy and that
Country had a duty to defend ComEd in the underlying action. In the circuit court’s December 6, 2019, written
order, it denied ComEd’s motion for summary judgment and found that ComEd was not an additional insured under
the policy and had no duty to defend ComEd.
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allegations against B3 in the third-party complaint that were not included in the underlying
complaint, i.e., that B3 was somehow negligent. See National Fire Insurance of Hartford, 392
Ill. App. 3d at 322 (where the additional insured filed its third-party complaint against the
insured in the underlying case after the insured brought the declaratory judgment action, the
court stated that it faced an additional strike and “the timing of the filing suggests the third-party
complaint sought to add what the underlying construction negligence complaint did not state,
that [the named insured]” was somehow contributory negligent”); see also Pekin Insurance Co.,
2013 IL App (3d) 120803, ¶ 32 (where the additional insured filed its third-party complaint after
the insurer initiated the declaratory action, the court stated it would not consider the additional
insured’s potentially self-serving, third-party complaint for purposes of summary judgment).
¶ 68 Further, as for Tribus’s third-party complaint, Durkin argues on appeal that it was
“error for the circuit court to refuse to consider the allegations of Tribus’s third-party complaint.”
We note that Tribus filed its third-party complaint against B3 on April 3, 2019, about two years
after Country filed this declaratory action in June 2017, and it contains similar allegations against
B3 as contained in ComEd’s and Durkin’s third-party complaints against B3. Durkin asserts that
Tribus was an uninterested party, and its third-party complaint should be considered unless there
is an indication that the pleading was self-serving, or filed to fill in information to support
coverage. See Farmers Auto Insurance Association v. Neumann, 2015 IL App (3d) 140026, ¶ 12
(where the complaint at issue was filed by an outside party and not a third-party seeking
coverage as a putative additional, the court concluded that the circuit court should have
considered it even though it was filed after the declaratory action, noting that there was no
indication it was self-serving, or filed merely to fill in information). Country argues that Durkin
did not submit Tribus’s third-party complaint to the circuit court for consideration until it filed its
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motion to reconsider and that the court correctly denied Durkin’s motion to reconsider. In
Durkin’s reply brief, it does not respond to Country’s argument that it did not submit Tribus’s
third-party complaint until it filed its motion to reconsider.
¶ 69 In the briefing on Durkin’s motion for summary judgment, Durkin only argued that
the circuit court should consider ComEd’s third-party complaint. Also, in Durkin’s motion for
summary judgment, it stated that “Moyett has pleaded multiple theories against Durkin that are
potentially covered under the policy when considered in light of ComEd’s third-party complaint”
and the “trial court should use the underlying complaint, ComEd’s third-party complaint, and the
relevant policy and contract language.” Durkin requested the court find that the underlying
plaintiff and third-party plaintiff ComEd pled allegations against Moyett and B3 that are
potentially covered by the Country policy. In Durkin’s reply to the motion for summary
judgment, it continued to argue that the court should consider ComEd’s third-party complaint
and did not argue that it should consider Tribus’s third-party complaint. It stated that the only
question for the court is “whether it should look at the additional pleadings—ComEd’s third-
party complaint and affirmative defenses—in the underlying matter to determine coverage.”
¶ 70 In Durkin’s motion to reconsider the court’s ruling on its motion for summary
judgment, it argued that the court “should have looked to ComEd’s third-party complaint” and
asserted that “ComEd’s third-party complaint did not bolster Durkin’s claim because B3 admits
that the relevant allegations are true.” On August 28, 2020, the court issued an order that
provided that the ruling date on Durkin’s motion to reconsider was reset to September 11, 2020.
¶ 71 Thereafter, on September 3, 2020, Durkin filed a “motion for leave to supplement
briefing,” to which it attached Tribus’s third-party complaint and argued that the court should
look at Tribus’s third-party complaint based on Scottsdale Insurance Co. v. Columbia Insurance
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Group, Inc., 972 F.3d 915, 924 (7th Cir. 2020). It argued Scottsdale Insurance addressed the use
of third-party complaints and that Durkin was not “aware of any previous decision that directly
addressed a court’s use of a third party complaint from a party not seeking coverage.”
¶ 72 On September 9, 2020, Country filed an opposition to Durkin’s motion for leave to
supplement briefing, in which it argued, inter alia, that Scottsdale Insurance did not represent a
change in the law and that it “simply rehashe[d] existing Illinois law, all of which was in place at
the time [Durkin] filed its Motion for Reconsideration.” It also asserted that Tribus’s third-party
complaint was not newly discovered evidence, as it was filed on April 3, 2019, and even though
Tribus’s third-party complaint “was filed seventeen months ago, this is the first mention of it by
[Durkin] and Tribus’ pleading is not included in [Durkin’s] Second Amended Counterclaim
which it filed in July, 2019, or any subsequent pleadings or briefs.” (Emphasis in original.)
¶ 73 Thereafter, the record shows that the circuit court entered an order on September 11,
2020, that stated that the ruling date on all pending motions was reset to September 25, 2020.
The record also contains an order entered by the circuit court on February 5, 2021, that states that
due to the COVID-19 pandemic, the ruling date “on your motion” must be reset to February 26,
2021. The next order in the record is the circuit court’s February 26, 2021, written order on
Durkin’s motion to reconsider, where it found that Durkin could not rely on ComEd’s third-party
complaint because it was brought by a similarly situated putative insured. In the order the court
did not address Durkin’s’ motion for leave to supplement briefing or Tribus’s third-party
complaint.
¶ 74 From our review of the record, there are no orders addressing the court’s ruling on
Durkin’s motion for leave to supplement briefing. Durkin does not direct us to any order in the
record that addressed Durkin’s motion for leave to supplement briefing and allowed Durkin to
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supplement the briefing. Thus, we do not know if the court ever granted Durkin leave to file the
motion for leave to supplement briefing, or if Tribus’s third-party complaint and Durkin’s
argument regarding the third-party complaint were before the court when it issued its February
26, 2021, order on Durkin’s motion to reconsider. “It is the responsibility of the party filing a
motion to request the trial court to rule on the motion, and when no ruling has been made on a
motion, it is presumed to have been abandoned absent circumstances indicating otherwise.”
Commerce Trust Co. v. Air 1st Aviation Companies, Inc., 366 Ill. App. 3d 135, 142 (2006). Thus,
as the party who filed the motion for leave to supplement briefing, it was Durkin’s burden to
request the court to rule on the motion, and when no ruling is made on the motion, we presume
that it was abandoned. Further, the “[f]ailure to obtain a ruling on a motion prior to filing a notice
of appeal serves as an abandonment of the motion and results in the procedural default of any
issue pertaining to the motion for purposes of appeal.” Kagan v. Waldheim Cemetery Co., 2016
IL App (1st) 131274, ¶ 58. Accordingly, Durkin’s failure to obtain a ruling on the motion for
leave to supplement briefing resulted in an abandonment of the motion and created a procedural
default of any issue related to that motion, which includes consideration of Tribus’s third-party
complaint by the circuit court, for purposes of appeal. Thus, we will not address the issue on
appeal.
¶ 75 Underlying Complaint’s Silence on B3 and Workers’ Compensation Act
¶ 76 Durkin contends that the underlying complaint’s silence regarding B3 should be
considered in the context of Illinois’s workers’ compensation laws, and it is a reason to find a
duty to defend, not a reason to exclude coverage. Durkin asserts that the “omitted facts regarding
Moyett’s employment were a result of tort immunity for employers.”
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¶ 77 The Workers’ Compensation Act “provides financial protection to workers for
accidental injuries arising out of and in the course of their employment.” Core Construction
Services of Illinois, Inc, 2019 IL App (4th) 180411, ¶ 27. In a declaratory action, “[t]he allegations
of the underlying complaint must be read with the understanding that the employer may be the
negligent actor even where the complaint does not include allegations against that employer.”
Pekin Insurance Co. v. Centex Homes, 2017 IL App (1st) 153601, ¶ 36. The “ ‘silen[ce] as to any
acts or omissions’ by the named insured must be understood as the possible result of tort immunity
for employers under the workers’ compensation laws and should not be a basis for refusing to
defend an additional insured.” Centex Homes, 2017 IL App (1st) 153601, ¶ 36 (quoting Ramara,
Inc. v. Westfield Insurance Co., 814 F.3d 660, 677-78 (3d Cir. 2016)). Further, as previously
discussed, if the facts alleged in the underlying complaint potentially fall within the policy’s
coverage, the insurer’s duty to defend arises (Outboard Marine Corp., 154 Ill. 2d at 108) and it is
“sufficient that the underlying complaint contain[] facts to support a theory of recovery for the
underlying plaintiff based on the negligence of the named insured” (Centex Homes, 2017 IL App
(1st) 153601 ¶ 39). We also note that an unpublished federal case AIX Specialty Insurance Co. v.
Raincoat Roofing Systems, Inc., No. 1:19-CV-02385, 2022 WL 742430, at *5 (N.D. Ill. Mar. 11,
2022), which is not binding or precedential, stated that “[n]otwithstanding the need to consider the
implications of worker’s compensation exclusivity on the allegations of the underlying complaint,
Illinois law requires the pleading of some alleged act or omission by [the employer] suggesting
that it is liable for the injuries claimed in the underlying suit.”
¶ 78 Here, the underlying complaint does not contain allegations suggesting a theory of
recovery against B3 or that it was negligent and caused Moyett’s injuries. The underlying
complaint alleges that ComEd supplied, operated, and owned the mechanical and electrical
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equipment located at the property and that the equipment caught fire and caused injury to Moyett.
The complaint alleged that ComEd contracted with Durkin to provide services for the equipment
and that Durkin failed to maintain the equipment, supplied defective equipment, and failed to warn
Moyett of the defective condition posed by the equipment. The complaint does not plead any
allegations regarding B3’s role with the equipment or any facts regarding its responsibility with
respect to the equipment that malfunctioned and caught fire. See e.g., Centex Homes, 2017 IL App
(1st) 153601, ¶ 43 (where there were no direct allegations in the underlying complaint against the
named insured, the court found that it sufficiently alleged facts to support a theory of recovery,
noting that the complaint made clear that the named insured was “the party responsible for building
the balloon wall and that [the underlying plaintiff] was injured when the wall fell and struck him”);
see also AIX Specialty Insurance Co. v. Raincoat Roofing Systems, Inc., No. 1:19-CV-02385, 2022
WL 742430, at *5 (N.D. Ill. Mar. 11, 2022) (where the defendant argued that the workers’
compensation laws explained the complaint’s silence as to the employer, the federal district court
concluded that the insurer did not have a duty to defend where the complaint included no
allegations that suggested that any acts or omission by the employer caused, in whole or part, the
plaintiff’s death).
¶ 79 Further, Durkin asserts that the underlying complaint’s silence is explained by the
workers’ compensation laws and that “Moyett could not sue his employer.” Durkin does not direct
this court to any authority to support that workers’ compensation laws restricted the underlying
plaintiffs from pleading any allegations in their complaint suggesting a theory of potential liability
against B3 based on its acts or omissions or any allegations with respect to its role with the
equipment and Moyett’s injuries. See AIX Specialty Insurance Co. v. Raincoat Roofing Systems,
Inc., No. 1:19-CV-02385, 2022 WL 742430, at *n.6 (N.D. Ill. Mar. 11, 2022) (“Workers’
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compensation exclusivity doubtless explains why employers are not typically named as defendants
in the complaints underlying duty to defend claims by additional insureds, but the exclusivity
provision in no way restricts them from alleging a theory of vicarious liability against a third party
premised on an employer’s acts or omissions.”).
¶ 80 In addition, we note that to support Durkin’s argument that the underlying complaint’s
silence regarding B3 should be considered in the context of Illinois’s workers’ compensation laws,
Durkin cites Hastings Mutual Insurance Co. v. Blinderman Construction Co., 2017 IL App (1st)
162234. In Blinderman, it was the insurer’s burden to establish that a policy exclusion applied.
Blinderman Construction Co., 2017 IL App (1st) 162234, ¶¶ 19, 24. There, the underlying
complaint did not specifically allege that the employer’s acts or omissions caused the injury, and
the court found that the complaint’s silence regarding the employer’s acts or omissions did not
suffice to meet the insurer’s burden of showing that the employer’s acts or omissions did not
contribute to causing the injury. Id. Here, it was Durkin’s burden to establish additional insurance
coverage under the policy. See Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453 (2009) (“This
court has long established that the burden is on the insured to prove that its claim falls within the
coverage of an insurance policy.”). Thus, Blinderman is distinguishable.
¶ 81 Accordingly, we are unpersuaded by Durkin’s argument that the court erred when it
did not consider the silence in the underlying complaint in the context of workers’ compensation
laws. The court properly denied Durkin’s motion for summary judgment and found that Country
did not have a duty to defend Durkin in the underlying action.
¶ 82 Lastly, we note that Country named the underlying plaintiffs as defendants in its
complaint for declaratory judgment in this instant case. The underlying plaintiffs’ attorney filed
an appearance on their behalf and filed an answer to the second amended complaint for declaratory
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judgment. However, the underlying plaintiffs did not participate in the briefing on the motions for
summary judgment. In the circuit court’s May 13, 2020, written order that denied Durkin’s motion
for summary judgment and found that Country had no duty to defend or indemnify Durkin in the
underlying action, the court also stated that “[t]his is a final order that disposes of the case in its
entirety,” which would include the underlying plaintiffs who were named as defendants. The
underlying plaintiffs have not filed an appearance in this case on appeal. Implicit in the circuit
court’s order that denied Durkin’s motion for summary judgment and found that Country did not
have to defend or indemnify Durkin in the underlying action was that underlying plaintiffs would
not be covered under the policy and Country owed them no duty.
¶ 83 III. CONCLUSION
¶ 84 Based on the foregoing, we affirm the circuit court’s order that denied Country’s
motion for summary judgment and found that Durkin was an additional insured on the policy.
We affirm the circuit court’s order that denied Durkin’s motion for summary judgment and
found that Country did not have a duty to defend Durkin in the underlying action.
¶ 85 Affirmed.
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