2017 IL App (1st) 160200
FIFTH DIVISION
May 19, 2017
No. 1-16-0200
PEKIN INSURANCE COMPANY, ) Appeal from the
) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. )
)
AAA-1 MASONRY & TUCKPOINTING, INC., )
and EMIL PIEKUTOWSKI, ) No. 14 CH 1303
)
)
Defendants )
)
(Scottsdale Insurance Company, )
)
Intervenor-Appellee). ) Honorable
) Moshe Jacobius,
) Judge Presiding.
JUSTICE HALL delivered the judgment of the court with opinion.
Presiding Justice Gordon and Justice Lampkin concurred in the judgment and opinion.
OPINION
¶1 This appeal arises out of an insurance coverage dispute involving a personal injury action
(Underlying Suit) filed on September 16, 2013, by Emil Piekutowski against defendants AAA-1
Masonry & Tuckpointing, Inc. (AAA), Chicago Scaffolding, Inc. (CSI), Lakeshore Land
Ventures LLC, Hilco Management, Inc., and Hilco Realty Management, Inc. Piekutowski v.
AAA-1Masonry & Tuckpointing, No. 13-L-10341 (Cir. Ct. Cook Co.). Plaintiff, Pekin Insurance
No. 1-16-0200
Company (Pekin) filed its initial declaratory action against AAA seeking a declaration that it
owed no duty to defend AAA in the Underlying Suit. Subsequently, defendant-intervener,
Scottsdale Insurance Company (Scottsdale) intervened in the declaratory action and filed a
counterclaim seeking a declaration from the circuit court that (1) Pekin has a duty to defend
AAA in the Underlying Suit pursuant to the policy entered into between Pekin and its named
insured Alpha 1 Construction Inc. (Alpha), whereby AAA was named an additional insured and
(2) that Pekin owed Scottsdale reimbursement for costs incurred defending AAA. The parties
submitted cross-motions for summary judgment, and the circuit court entered judgment in favor
of Scottsdale on both counts on December 22, 2015. On January 21, 2016, the circuit court
granted Pekin’s motion for a finding pursuant to Rule 304(a) of the Illinois Supreme Court Rules
(Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)). As a result, Pekin filed its timely notice of appeal on
January 21, 2016.
¶2 BACKGROUND
¶3 A. The Pekin Policy
¶4 AAA and Alpha entered into an agreement for construction services and labor on August
6, 2007 (Subcontract). In the Subcontract, Alpha agreed to name AAA as an additional insured
on its commercial general liability insurance policy. The Subcontract stated that Alpha was an
independent contractor of AAA and that Alpha was to maintain full control over its respective
crews, employees, assistants, helpers and workers. The Subcontract further provided that the
work was to be performed solely by Alpha and not by AAA.
¶5 Pekin issued a policy of insurance to Alpha as named insured for the effective policy
period of June 1, 2012, to June 1, 2013. The policy contained an “additional insured”
endorsement, which provided that an additional insured was “any person or organization for
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whom you are performing operations, when you and such person or organization have agreed in
a written contract effective during the policy period *** that you must add that person or
organization as an additional insured on a policy of liability insurance.” The endorsement further
provided that additional insureds were covered “only with respect to vicarious liability for
‘bodily injury’ or ‘property damage’ imputed from [the named insured] to the Additional Insured
as a proximate result of your ongoing operations performed for that Additional Insured during
the Policy Period.” The endorsement specifically excluded liability “arising out of or in any way
attributable to the claimed negligence or statutory violation of the Additional Insured, other than
vicarious liability which is imputed to the Additional Insured solely by virtue of the acts or
omissions of the Named Insured.”
¶6 B. Piekutowski Complaint
¶7 In the Underlying Suit, Alpha is not named as a defendant; however, Piekutowski alleges
that on September 20, 2011, prior to and at the time of his injury, the defendants “individually
and by and through agents, servants and employees,” owned and/or were in charge of the
construction of a building located at 2930 North Commonwealth Avenue in Chicago. On that
date, Alpha and AAA were operating under the Subcontract regarding the construction, and
Piekutowski was employed by Alpha and performing work at the construction site when he fell
from a scaffold and sustained permanent injuries.
¶8 Piekutowski alleged that defendants, individually and through agents, servants and
employees, “participated in coordinating work being done and designated various work methods,
maintained and checked work progress and participated in the scheduling of the work and the
inspection of the work,” and were responsible for complying with standards promulgated by the
Occupational Safety and Health Administration (OSHA). The complaint further alleges that
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defendants had the authority to stop the work, refuse the work and materials and order changes in
the work, in the event the work was being performed in a dangerous manner, or for any other
reason. Piekutowski goes on to allege numerous “careless and negligent acts and/or omissions”
on the part of the named defendants, of which he claims one or more was a proximate cause of
his injuries.
¶9 C. CSI Third-Party Complaint
¶ 10 On September 18, 2014, CSI filed a third-party complaint against Alpha seeking
contribution. CSI alleged that AAA “rented equipment, including a swing stage and supporting
equipment from [CSI],” and that Piekutowski was using the swing stage and supporting
equipment in furtherance of his work when he was injured. The CSI complaint goes on to allege
a number of negligent acts or omissions on the part of Alpha, that Alpha had a duty to
Piekutowski to supervise and provide a safe work environment, that Alpha was responsible for
the work being performed pursuant to OSHA standards and that “the alleged damages suffered
by [Piekutowski] were directly and proximately caused by the negligent and careless acts of
[Alpha].”
¶ 11 D. Pekin Declaratory Judgment Action
¶ 12 On August 17, 2012, Scottsdale, AAA’s general liability insurance provider, tendered
AAA’s defense of the Underlying Suit to Pekin pursuant to the terms of the Pekin policy; that
same day, Scottsdale also tendered CSI’s defense to Pekin on behalf of CSI. XL Insurance
Company is CSI’s general liability insurance provider and it tendered CSI’s defense to
Scottsdale. Scottsdale maintained the position that it had no duty to defend CSI in the Underlying
Suit. 1
1
The matter of Scottsdale’s duty to defend CSI was the subject of a separate declaratory action in federal court
where the district court held that Scottsdale did in fact have a duty to defend CSI in the Underlying Suit. Scottsdale
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¶ 13 On November 7, 2012, Pekin rejected Scottsdale’s tender of AAA’s defense on the
grounds that it did not believe its duty to defend AAA was triggered where AAA was not sued
for damages stemming from Alpha’s acts or omissions. On January 23, 2014, Pekin filed its
complaint for declaratory judgment against AAA and Piekutowski, seeking a declaration that
Pekin had no duty to defend AAA in the Underlying Suit. Pekin alleged, inter alia, that it had no
duty to defend AAA as an additional insured because Piekutowski sued AAA for its own
negligence and the additional insured endorsement specifically excludes coverage for the
negligence of the additional insured.
¶ 14 On May 23, 2014, AAA filed its answer and cross-complaint for declaratory judgment,
seeking a declaration that Pekin had a duty to defend AAA in the Underlying Suit. On July 11,
2014, Scottsdale moved to intervene, and on August 5, 2014, the circuit court granted
Scottsdale’s motion and ordered Scottsdale to file instanter its answer and counterclaim for
declaratory judgment.
¶ 15 In its counterclaim, Scottsdale alleged that it had undertaken AAA’s defense in the
Underlying Suit and sought declarations (1) that Pekin had a duty to defend AAA, (2) that Pekin
has a duty to indemnify AAA, (3) that the Pekin policy is primary and noncontributory, and (4)
that Scottsdale was entitled to reimbursement of defense costs and expenses in connection with
providing AAA a defense in the Underlying Suit.
¶ 16 On July 26, 2015, Scottsdale filed its motion for summary judgment which included the
following attached to it: CSI’s third party complaint for contribution, CSI’s answers to
interrogatories from the Underlying Suit, the Subcontract, and a note from the Pekin claim file
dated September 11, 2012. The note stated that:
Insurance Co. v. Chicago Scaffolding, Inc., No. 14 C 4268, 2015 WL 4751136 (N.D. Ill. Aug. 11, 2015), appeal
dismissed, No. 15-2975 (7th Cir. Apr. 26, 2016).
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“Alpha loaded masonry bricks mortar and an I beam on the swing stage
scaffolding and began raising it from ground level to the 6th floor. While the scaffolding
was in transit to the top level of the building the scaffolding allegedly shifted and
apparently caused an I beam support rail to come loose and fall forward striking the
lefthand/foratm [sic.]”
¶ 17 On July 28, 2015, Pekin filed a cross-motion for summary judgment. On December 22,
2015, after hearing oral argument, the circuit court granted Scottsdale’s motion for summary
judgment and denied Pekin’s cross-motion. The circuit court found that AAA was entitled to a
defense from Pekin because the facts pleaded in Piekutowski’s complaint, taken together with
the facts in CSI’s third-party complaint, created the potential that AAA could be found liable
based on Alpha’s negligent acts or omissions. In response, Pekin timely appealed that judgment.
¶ 18 ANALYSIS
¶ 19 The dispositive issue on appeal is whether Pekin’s duty to defend AAA as an additional
insured was triggered. Pekin maintains that the circuit court erred when it determined that it had
a duty to defend AAA on the grounds that the allegations contained in CSI’s third-party
complaint and Piekutowski’s complaint raised the potential that liability could be imputed to
AAA solely from negligent acts or omissions by Alpha. Even assuming arguendo that CSI’s
third-party complaint was considered in error, we find that other true but unpleaded facts are
sufficiently present in the instant case to affirm the circuit court’s judgment.
¶ 20 A. Standard of Review
¶ 21 On appeal, a reviewing court may affirm the trial court’s ruling for any reason supported
by the record regardless of the basis relied upon by the trial court. In re Marriage of Loomis, 348
Ill. App. 3d 972, 974 (2004) (citing Scassifero v. Glaser, 333 Ill. App. 3d 846, 860 (2002)). The
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instant case involves the circuit court’s ruling on cross-motions for summary judgment.
Summary judgment is appropriate where the pleadings, depositions, and admissions on file,
together with any affidavits and exhibits, when viewed in the light most favorable to the
nonmoving party, indicate there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Pekin Insurance Co. v. United Contractors Midwest,
Inc., 2013 IL App (3d) 120803, ¶ 22. We review cases involving summary judgment de novo. Id.
¶ 22 B. Discussion
¶ 23 It is well established that, in a declaratory judgment action such as the case at bar, where
the issue is whether the insurer has a contractual duty to defend pursuant to an insurance policy,
a court ordinarily looks first to the allegations in the underlying complaint and compares those
allegations to the relevant provisions of the insurance policy. Id. ¶ 21. An insurer may not
justifiably refuse to defend an action against its insured unless it is clear from the face of the
underlying complaint that the allegations fail to state facts which bring the case within, or
potentially within, the policy’s coverage. Id. Therefore, if the facts alleged in the underlying
complaint fall within, or potentially within, the policy’s coverage, the insurer’s duty to defend
arises. Id. “ ‘The insurer’s duty to defend is much broader than its duty to indemnify its
insured.’ ” American Economy Insurance Co. v. DePaul University, 383 Ill. App. 3d 172, 178
(2008) (quoting Crum & Forster Managers Corp., 156 Ill. 2d 384, 393-94 (1993)). The threshold
for pleading a duty to defend is low, and any doubt with regard to such duty is to be resolved in
favor of the insured. United Services Automobile Ass’n v. Dare, 357 Ill. App. 3d 955, 963
(2005). “[I]nsurance policies are to be liberally construed in favor of coverage, and where an
ambiguity exists in the insurance contract, it will be resolved in favor of the insured and against
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the insurer.” Id. at 963-64. “Provisions in an insurance policy that limit or exclude coverage are
also construed liberally in favor of the insured and against the insurer.” Id. at 964.
¶ 24 Although a court ordinarily begins its analysis by examining the underlying complaint, a
court is not limited to the allegations in the complaint in determining whether an insurer has a
duty to defend. Pekin Insurance Co. v. Pulte Home Corp., 404 Ill. App. 3d 336, 340 (2010). The
Illinois Supreme Court declined to “limit the source of an insurer’s duty to defend ‘solely’ to the
content of the underlying complaint in all cases.” Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446,
458 (2010). Under certain circumstances, it is proper for the court to examine evidence beyond
that contained in the underlying complaint to determine the insurer’s duty to defend. Id. at 462.
One such circumstance is where the insurer possesses knowledge of true but unpleaded facts
that, when taken together with the allegations in the complaint, indicate that the claim is within
or potentially within the policy coverage. Shriver Insurance Agency v. Utica Mutual Insurance
Co., 323 Ill. App. 3d 243, 247 (2001) (citing Indiana Insurance Co. v. Hydra Corp., 245 Ill. App.
3d 926, 929 (1993)). The only time such evidence should not be permitted is when it tends to
determine an issue crucial to the determination of the underlying lawsuit. Fidelity & Casualty
Co. of New York v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 305 (1983).
¶ 25 In the present case, Scottsdale contends that the true but unpleaded facts doctrine allows
full consideration of Pekin’s claim note and that when taken together with the allegations in the
underlying complaint, they trigger Pekin’s duty to defend AAA. Pekin contends that the claim
note does not trigger its duty to defend because the note does not state or suggest that Alpha was
negligent. We find Pekin’s argument unpersuasive. The question this Court must answer is not
whether the note taken by itself states or suggests that Alpha was negligent, but rather whether
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the note when taken together with the allegations in the underlying complaint indicate that the
claim is within or potentially within the policy coverage. See Shriver, 323 Ill. App. 3d at 247.
¶ 26 Alpha’s insurance policy names AAA as an additional insured and covers circumstances
where vicarious liability for bodily injury or property damage is imputed from Alpha to AAA
solely by virtue of Alpha’s acts or omissions. The Subcontract between Alpha and AAA states
that Alpha, rather than AAA, was solely responsible for performing the work at the construction
site, and the parties agreed Alpha was to maintain full control over its respective crews,
employees, assistants, helpers, and workers. The parties do not dispute that Piekutowski was
employed by Alpha at the time of his injury. According to Pekin, it was informed that “(1) Alpha
loaded bricks, mortar and an I-beam onto a swing stage scaffolding; (2) Alpha raised the swing
stage scaffolding from ground level; (3) and that during transit, the scaffolding shifted , causing
an I-beam to come loose and fall forward, striking the left hand/forearm of Piekutowski.”
Piekutowski’s complaint alleged that his injuries were proximately caused by careless or
negligent acts, which included in pertinent part: failing to safely place or operate scaffolding,
failing to adequately secure the scaffolding, and allowing the scaffolding to be inadequately
secured. Piekutowski raised his allegations solely against the named defendants; however, when
read in conjunction with Pekin’s claim note and the terms of the Subcontract, they create the
possibility that AAA could be found liable for Piekutowski’s injuries based on Alpha’s careless
or negligent operation of the swing stage scaffolding.
¶ 27 On appeal, Pekin attempts to distinguish the reviewing court’s decision in American
Economy Insurance Co. v. DePaul University, 383 Ill. App. 3d 172 (2008) from the instant case;
however we find the rationale utilized in that case to be instructive. In American Economy,
Caroline Cogtella filed a lawsuit against defendants DePaul University (DePaul), L & L
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Engineers, and Holabird & Root (H&R), alleging that she suffered bodily injury due to her
exposure to the fluorescent lighting selected and installed in DePaul’s Goldblatt building. Id. at
173. Subsequently, DePaul tendered its defense of Cogtella’s complaint to plaintiff American
Economy Insurance Company (American Economy) because American Economy was the
insurer of Metrick Electric Company (Metrick). Id. Metrick was the electrical subcontractor that
was hired to install the lighting at the Goldblatt building and DePaul was a named additional
insured on Metrick’s insurance policy. Id. American Economy denied coverage and filed a
declaratory judgment action as to its duty to defend in the Cogtella litigation. The circuit court, in
considering cross-motions for summary judgment, held that American Economy had an
obligation to defend DePaul in the Cogtella litigation. Id. On appeal, the reviewing court applied
the same rationale utilized in the related declaratory judgment action American Economy had
against H&R by reiterating “‘that in addition to the third-party complaint, true but unpleaded
facts should have alerted American Economy to the possibility that the Cogtella complaint
against H&R was potentially within the coverage of Metrick’s policy.’ ” Id. at 181 (quoting
American Economy Insurance Co. v. Holabird & Root, 382 Ill. App. 3d 1017, 1034 (2008)). The
reviewing court came to this conclusion after reviewing Cogtella’s complaint together with the
terms of Metrick’s subcontract. Id. at 182. The subcontract provided that Metrick was
responsible for the construction of the complete operating electrical system. Id. The Cogtella
complaint against DePaul alleged that she was injured because of the selection and installation of
the fluorescent lighting without UV diffusers. Id. The reviewing court found that American
Economy knew Metrick installed the fluorescent lighting because American Economy
represented Metrick in the underlying litigation. Id. Consequently, the reviewing court affirmed
the circuit court and found the allegations in the complaint, taken together with the true but
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unpleaded facts contained in the record, were sufficient to trigger American Economy’s duty to
defend. Id.
¶ 28 In the present case, the Subcontract states that Alpha, rather than AAA, is solely
responsible for the work at the construction site. Piekutowski’s complaint alleges, inter alia, that
he was injured by careless or negligent acts relating to the operation of the swing stage
scaffolding. Furthermore, the claim note, taken from Pekin’s claim file and dated September 11,
2012, states that Piekutowski was injured during Alpha’s operation of the swing stage
scaffolding. Therefore, prior to November 7, 2012, when Pekin rejected Scottsdale’s tender of
AAA’s defense, Pekin should have been alerted that Piekutowski’s complaint against AAA was
potentially within the coverage of Alpha’s policy. See La Rotunda v. Royal Globe Insurance Co.,
87 Ill. App. 3d 446, 452 (1980) (finding the results of the insurance company’s own investigation
may be considered as unpleaded facts known to the insurer which indicate that the claim was
potentially within the policy’s coverage). “ ‘To hold otherwise would allow the insurer to
construct a formal fortress of the third party’s pleadings and to retreat behind its walls, thereby
successfully ignoring true but unpleaded facts within its knowledge that require it, under the
insurance policy, to conduct the putative insured’s defense.’ ” Id. (quoting Associated Indemnity
Co. v. Insurance Co. of North America, 68 Ill. App. 3d 807, 816-17 (1979)).
¶ 29 Based on the forgoing facts, we find that the allegations in Piekutowski’s complaint when
taken with the facts in Pekin’s claim note and the terms of the Subcontract raise the possibility
that liability could be imputed to AAA as a result of Alpha’s operation of the scaffolding swing
stage; therefore, Pekin’s duty to defend AAA under the additional insured endorsement was
triggered. We also note that consideration of these true but unpleaded facts does not determine
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any issue crucial to the Underlying Suit. Accordingly, we find the circuit court properly held that
Pekin has a duty to defend AAA, and we affirm the decision of the circuit court of Cook County.
¶ 30 Affirmed.
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