dissenting:
I would adhere to the principles stated in Illinois Emcasco Insurance Co. v. Northwestern National Casualty Co., 337 Ill. App. 3d 356 (2003). A straightforward application of those principles supports the trial court’s decision here. In Emcasco we said:
“The insurer’s duty to defend does not depend upon a sufficient suggestion of liability raised in the complaint; instead, the insurer has the duty to defend unless the allegations of the underlying complaint demonstrate that the plaintiff in the underlying suit will not be able to prove the insured liable, under any theory supported by the complaint, without also proving facts that show the loss falls outside the coverage of the insurance policy. [Citations.] The insurer may simply refuse to defend only if the allegations of the underlying complaint preclude any possibility of coverage.” Emcasco, 337 Ill. App. 3d at 361.
Aggen pleaded in his complaint that UPS and Werner “by and through their agents *** [p]rovided Plaintiff with an unsafe and unstable ladder from which to work.” Nothing in the complaint precludes the possibility that Swan may qualify as an agent for whose fault Aggen seeks to hold UPS liable. See Cochran v. George Sollitt Construction Co., 358 Ill. App. 3d 865, 874 (2005). Thus, the complaint leaves open the possibility that a court might find UPS liable solely based on Swan’s negligent act of providing its employee, Aggen, with an unstable ladder from which to work. The complaint’s failure to specifically name Swan as the negligent agent of UPS should not excuse Pekin from providing a defense to the complaint. Accordingly, I would affirm the trial court’s decision finding that Pekin owed UPS a duty to defend it against Aggen’s complaint.