Modern Track Machinery, Inc. v. Bry-Lon, Ltd., BRY-LO

• Citation: 197 Ill.App.3d 560,554 N.E.2d 1104,144 Ill.Dec. 65
• Decision Date: 08 May 1990
• Docket Number: LTD,BRY-LO,No. 2-89-0888,2-89-0888
• Parties: , 144 Ill.Dec. 65 MODERN TRACK MACHINERY, INC., Plaintiff-Appellant, v., et al., Defendants-Appellees (The Cincinnati Insurance Company, Defendant).
• Court: United States Appellate Court of Illinois

Page 1104

554 N.E.2d 1104 197 Ill.App.3d 560, 144 Ill.Dec. 65 MODERN TRACK MACHINERY, INC., Plaintiff-Appellant,
v.
BRY-LON, LTD., et al., Defendants-Appellees (The Cincinnati
Insurance Company, Defendant). No. 2-89-0888. Appellate Court of Illinois,
Second District. May 8, 1990.

Page 1105

[197 Ill.App.3d 561] [144 Ill.Dec. 66] Condon & Zopp, Ltd., Joseph P. Condon, Crystal Lake, for Modern Track Machinery, Inc.

Brittain, Ketcham, Strass, Terlizzi, et al., Elgin, William H. Weir, Daniel E. Compton, for Bry-Lon, Ltd., Bryant Longway Agency, Inc., Cincinnati Ins. Co.

Presiding Justice UNVERZAGT delivered the opinion of the court:

Plaintiff, Modern Track Machinery, Inc. (Modern Track), filed a three-count amended complaint against defendants, Cincinnati Insurance Company (Cincinnati), Bry-Lon, Ltd., and Bryant-Longhway Agency, Inc. (hereinafter referred to jointly as Bry-Lon). Counts I and II were directed against Cincinnati; count I sought a declaratory judgment that plaintiff's insurance policies with Cincinnati covered certain liability, and count II sought reformation of the insurance policies. Count III was directed against Bry-Lon and alleged fraudulent misrepresentation. Counts I and II were dismissed and are not at issue in this appeal. Count III was dismissed pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-615), and plaintiff appeals the dismissal of that count.

In December 1982, Modern Track purchased insurance policies from Cincinnati through its agent, Bry-Lon. The policies provided workers' compensation coverage, general comprehensive liability coverage and excess or umbrella coverage. On January 10, 1983, Modern Track entered into a contract with the Atchison, Topeka and Santa Fe Railway Company (Santa Fe) whereby Modern Track would lease certain machinery to Santa Fe.

The lease agreement provided, in relevant part, that Modern [197 Ill.App.3d 562] Track would indemnify Santa Fe against all claims of loss when the loss was the result of the sole negligence of Modern Track and that Modern Track would procure and maintain certain insurance policies covering all of the equipment provided and services performed by Modern Track pursuant to the agreement. Under the agreement, Modern

Page 1106

[144 Ill.Dec. 67] Track was required to obtain the following insurance: (1) workers' compensation coverage; (2) comprehensive general liability coverage, including personal injury and property damage; (3) comprehensive automobile liability coverage; (4) products and completed...