Legion Ins. v. EMPIRE FIRE & MARINE INS.

• Decision Date: 23 December 2004
• Docket Number: No. 1-03-2833.,1-03-2833.
• Citation: 354 Ill. App.3d 699,822 N.E.2d 1,290 Ill.Dec. 719
• Parties: LEGION INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellant, v. EMPIRE FIRE AND MARINE INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee.
• Court: United States Appellate Court of Illinois

822 N.E.2d 1

354 Ill. App.3d 699

290 Ill.Dec. 719

LEGION INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellant, v. EMPIRE FIRE AND MARINE INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee.

No. 1-03-2833.

Appellate Court of Illinois, First District, Fourth Division.

December 23, 2004.

Rehearing Denied February 3, 2005.

David M. Holmes, Izabella A. Bielinska, Smita Mokshagundam, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Chicago, for Appellant.

Esther Joy Schwartz, Stellato & Schwartz, Ltd., Chicago, for Appellee.

Justice THEIS delivered the opinion of the court:

This appeal arises from a contribution and declaratory judgment action brought by plaintiff-counterdefendant Legion Insurance Company (Legion) against defendant-counterplaintiff Empire Fire & Marine Insurance Company (Empire) concerning their mutual insured, Barrco Industries, Inc. (Barrco). Empire also filed a counterclaim for a declaratory judgment, seeking a declaration that it did not owe Barrco a duty to defend or indemnify. After the parties filed cross-motions for summary judgment on both the complaint and the counterclaim, the trial court granted Empire's motion and denied Legion's motion. Legion now appeals, arguing that the court erred in finding that Empire's policy did not provide coverage to Barrco, and that Legion could not seek contribution from Empire. Because we find that Barrco deactivated its previous tender of its defense to Empire, Empire's policy was not implicated. We affirm.

The following background information is necessary to an understanding of this case. Joseph J. Duffy Co. (Duffy) was the general contractor at a construction site located at Dearborn Street between Erie and Huron Streets in Chicago. Barrco was a subcontactor of Ozark Steel Sales, Inc., and Ozark Steel Fabricators (collectively, Ozark), and worked at the project under the Ozark-Barrco subcontract. On May 27, 1997, Ronald Stone sustained injuries while working at the project. Stone was an employee of Unified Management, Inc., an employee leasing agency, but was leased to Barrco at the time of his injury. It is undisputed that Stone was a leased employee of Barrco at that time. Shortly thereafter, Stone filed suit against Duffy and Ozark, among others.

Duffy then filed a third-party complaint for contribution against Barrco, Stone's employer, on May 11, 1999. Ozark filed a similar third-party contribution action against Barrco on May 25, 1999. In count II of its amended complaint, Ozark alleged that, although an employer's contribution liability to a third-party plaintiff is generally limited to the amount of workers' compensation benefits paid to the injured party under Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023 (1991), Barrco waived its Kotecki cap through a clause in the Ozark-Barrco subcontract. Also in count II, Ozark sought contribution for the amount it paid above Barrco's Kotecki limit. In count I, Ozark sought contribution without a Kotecki waiver. Additionally, Barrco asserted its Kotecki cap as an affirmative defense to Duffy's contribution claim. After Duffy filed a motion to strike this affirmative defense, the trial court agreed that Barrco waived its Kotecki cap by contract.

At the time of Stone's accident, Barrco was covered by two separate insurance policies: an employer's liability/worker's compensation policy issued by Legion; and a commercial general liability policy (CGL) issued by Empire. Barrco tendered its defense of both the Duffy and Ozark third-party complaints to Legion. Legion initially provided a defense to Barrco in both actions in February 2000 and continued to represent Barrco under a reservation of rights as explained in an April 6, 2000 letter. On December 9, 1999, Barrco's attorney hired by Legion sent a letter to Empire tendering Barrco's defense in the Duffy and Ozark contribution actions to Empire. Barrco then wrote Empire on July 20, 2000, indicating that it did not want to tender its defense to Empire. Empire refused coverage and filed a declaratory judgment action on November 9, 2000 seeking a declaration that it owed Barrco no duty to defend or indemnify.¹

On August 27, 2001, the parties settled the Stone lawsuit, including the Ozark and Duffy contribution actions, for $2,040,000, of which Barrco's share was $640,000. Pursuant to the settlement, Legion paid $640,000 on behalf of Barrco and also agreed to waive its worker's compensation lien of $340,810.48, an amount it had previously paid to Stone to settle Stone's worker's compensation claim. Additionally, the original Stone lawsuit and both the Ozark and Duffy contribution actions were dismissed.

On October 8, 2002, Legion filed a four-count complaint against Empire seeking indemnification, contribution, declaratory judgment, and estoppel. Legion argued that Empire had a duty to defend and indemnify Barrco in the Ozark third-party contribution action and, thus, was required to contribute, on Barrco's behalf, to the settlement. Legion sought compensatory damages and attorney fees and costs incurred in its defense of Barrco. In its answer to this complaint, Empire responded, inter alia, that Barrco's tender of its defense to Empire had been rescinded, in writing, by the July 20, 2000 letter. Empire also argued as several of its affirmative defenses that it had no duty to defend or indemnify Barrco because Barrco never tendered its defense to Empire, again relying on the July 20, 2000 letter. It argued that, in that letter, Barrco indicated that it was placing Empire on notice of the claim, but did not intend to seek coverage from Empire.

On January 21, 2003, Empire filed a counterclaim for a declaratory judgment, contending that it had no duty to defend or indemnify Barrco in the Ozark contribution action due to several exclusions in its policy. Again, Empire cited the July 20, 2000 letter from Barrco indicating Barrco's desire not to seek coverage from Empire.

On February 19, 2003, Empire filed its motion for summary judgment on both Legion's complaint and Empire's counterclaim. Empire first argued that it had no duty to defend and indemnify Barrco under its CGL policy in the Ozark contribution action because of exclusion e(1), which excluded coverage for liability to an employee of the insured injured during the course of his employment. Additionally, Empire argued that the exception to this exclusion, allowing coverage for liability assumed under an "insured contract," did not apply to the Barrco-Ozark subcontract, relying on Hankins v. Pekin Insurance Co., 305 Ill.App.3d 1088, 239 Ill.Dec. 394, 713 N.E.2d 1244 (1999). Empire again mentioned the July 20, 2000 letter, which indicated that Barrco did not want to tender its defense to Empire and attached this letter as an exhibit to its motion.

Legion filed a cross-motion for summary judgment, contending that Empire's CGL policy covered Stone's loss above the Kotecki limit, citing Michael Nicholas, Inc. v. Royal Insurance Co. of America, 321 Ill.App.3d 909, 255 Ill.Dec. 82, 748 N.E.2d 786 (2001), and West Bend Mutual Insurance Co. v. Mulligan Masonry Co., 337 Ill.App.3d 698, 272 Ill.Dec. 244, 786 N.E.2d 1078 (2003). Legion then argued that because Empire was liable for the amount of the settlement above the Kotecki cap, Empire owed Legion $640,000 and one-half of the defense costs. In response, Empire argued, inter alia, that Barrco's July 20, 2000 letter to Empire rescinded its prior tender of its defense to Empire, thus deactivating coverage under Empire's policy. Empire contended that because Barrco deactivated its tender, Empire had no duty to defend or indemnify Barrco and, thus, had no duty to pay Legion in contribution.

In ruling on both motions, the court relied on Hankins and found that Empire's CGL policy was not an "insured contract" and, thus, the exception to exclusion e(1) did not apply. Due to this exclusion, Empire did not have a duty to defend or indemnify Barrco and, therefore, Legion could not seek contribution from Empire. The court then granted Empire's motion for summary judgment on both the complaint and the counterclaim and denied Legion's motion. Legion then filed this timely appeal.

Summary judgment is proper where the pleadings, depositions, and admissions on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. City of Chicago v. Holland, 206 Ill.2d 480, 487, 276 Ill.Dec. 887, 795 N.E.2d 240, 245 (2003). Where both parties file cross-motions for summary judgment, they agree that no material issue of fact exists and that only a question of law is involved. Board of Education v. Cunningham, 346 Ill.App.3d 1027, 1030, 282 Ill.Dec. 631, 806 N.E.2d 1219, 1221 (2004). We review the grant of summary judgment de novo. Holland, 206 Ill.2d at 487,

276 Ill.Dec. 887,

795 N.E.2d at 245. Additionally, we can affirm the trial court's ruling on any basis in the record. Ashley v. Pierson, 339 Ill.App.3d 733, 737, 274 Ill.Dec. 574, 791 N.E.2d 666, 670 (2003).

Before addressing the specific provisions of Empire's CGL policy, we must first address the threshold issue of whether Barrco ever sought coverage under Empire's policy such that Empire had a duty to defend and indemnify Barrco. We find that it did not.

Under the "selective tender" rule, when several insurance policies are available to the insured, that insured has the paramount right to choose or knowingly forego an insurer's participation in a claim. John Burns Construction Co. v. Indiana Insurance Co., 189 Ill.2d 570, 574-76, 244 Ill.Dec. 912, 727 N.E.2d 211, 215-16 (2000). The insured may choose to forego an insurer's assistance for various reasons, including the insured's fear that premiums would increase or that the policy would be canceled in the future. Cincinnati Cos. v. West American Insurance Co., 183 Ill.2d 317, 326, 233 Ill.Dec. 649, 701 N.E.2d 499, 503 (1998). Moreover, an...