Liberty Mut. Ins. Co. v. Zurich Ins. Co.

• Decision Date: 10 June 2010
• Docket Number: No. 1-08-2927.,1-08-2927.
• Citation: 930 N.E.2d 573,341 Ill.Dec. 363,402 Ill.App.3d 37
• Parties: LIBERTY MUTUAL INSURANCE COMPANY and Ritz-Carlton Water Tower, Plaintiffs-Appellants,v.ZURICH INSURANCE COMPANY, d/b/a Zurich American Insurance Group, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 37

930 N.E.2d 573

341 Ill.Dec. 363

LIBERTY MUTUAL INSURANCE COMPANY and Ritz-Carlton Water Tower, Plaintiffs-Appellants,v.ZURICH INSURANCE COMPANY, d/b/a Zurich American Insurance Group, Defendant-Appellee.

No. 1-08-2927.

Appellate Court of Illinois,

First District, Fourth Division.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Johnson & Bell, Ltd., Chicago (Glenn F. Fencl and Richard R. Gordon, of counsel), for Plaintiffs-Appellants.

Lewis Brisbois Bisgaard & Smith LLP, Chicago (Danny L. Worker and Brook M. Rotstein, of counsel), for Defendant-Appellee.

Justice NEVILLE delivered the opinion of the court:

This case involves a dispute between Zurich Insurance Company (Zurich), a primary insurer and defendant, and Liberty Mutual Insurance Company (Liberty Mutual), an excess insurer and one of the plaintiffs, over which insurance company is required to pay for a loss sustained by their insured and the other plaintiff, the Ritz-Carlton Water Tower hotel. Hotel guests lost valuable property they placed in a safe in their hotel room. Ritz-Carlton's primary insurer, Zurich, claimed that its policy's exclusion for damage to property in the “care, custody or control” of the hotel precluded primary insurance coverage for the loss as property damage. Instead, Zurich paid only the lesser limit of its liability for its special coverage for loss of hotel guests' property. The trial court granted Zurich's motion for judgment on the pleadings. Ritz-Carlton and Liberty Mutual now appeal.

BACKGROUND

In 1997, Peter Schaufler and Christiane Schaufler-Muench rented a room at the Ritz-Carlton Water Tower hotel. The Schauflers put jewelry and cash in a wall safe in their room. On May 7, 1997, the Schauflers left their valuables in the safe while they toured Chicago. When they returned from their tour, they discovered that their valuables were missing. They sued Ritz-Carlton for negligently failing to prevent unauthorized duplication of the room and safe keys.

Ritz-Carlton tendered defense of the suit to its primary insurer, Zurich, and its excess insurer, Liberty Mutual. The insurers disputed the amount of primary coverage, but they agreed on the value of the Schauflers' claim. The insurers and Ritz-Carlton settled the Schauflers' claim for $1 million. Zurich paid the Schauflers $250,000, Liberty paid $375,000, and Ritz-Carlton paid the remaining $375,000 to settle the claim. Liberty and Ritz-Carlton then brought this lawsuit against Zurich to recover from Zurich the $750,000 Liberty and Ritz-Carlton paid in the settlement. Zurich answered that it had paid its applicable limit of liability for the loss of a guest's property.

The insurance policy Zurich sold Ritz-Carlton provides, in coverage A:

“We will pay those sums that the insured becomes legally obligated to pay as damages because of * * * ‘property damage’ to which this insurance applies. * * *

* * *

This insurance does not apply to:

* * *

‘Property damage’ to:

* * *

* * * Personal property in the care, custody or control of the insured.”

Coverage L provides:

“LIABILITY FOR GUESTS PROPERTY * * *

* * * We will pay those sums that you become legally obligated to pay as damages because of loss or destruction of * * * Covered Property. * * *

* * * Covered Property: Any property * * * belonging to your guests while the property is in:

a. The ‘premises;’ or

b. Your possession.”

For coverage A, the policy limits Zurich's liability to $1 million per occurrence. A separate limit of $250,000 per occurrence applies to coverage L.

All three parties moved for judgment on the pleadings. The trial court entered judgment in favor of Zurich, finding that the exclusion in coverage A for property in the hotel's care, custody or control applied to the Schauflers' claim. Zurich had liability only under coverage L, which limited its liability to the $250,000 it paid. Liberty Mutual and Ritz-Carlton now appeal.

ANALYSIS

The trial court should grant motions for judgment on the pleadings if the parties do not dispute any genuine issue of material fact and the law requires judgment in favor of the moving party. M.A.K. v. Rush-Presbyterian-St.-Luke's Medical Center, 198 Ill.2d 249, 255, 261 Ill.Dec. 710, 764 N.E.2d 1 (2001). We review a judgment on the pleadings much like a summary judgment, except that we consider no evidence apart from the pleadings. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill.2d 127, 138, 237 Ill.Dec. 82, 708 N.E.2d 1122 (1999). Therefore, we review orders granting judgments on the pleadings de novo. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill.2d 381, 385, 294 Ill.Dec. 163, 830 N.E.2d 575 (2005).

A court construing an insurance policy will read the policy as a whole and “ ‘take into account the type of insurance purchased, the nature of the risks involved and the overall purpose of the contract.’ ” Travelers Insurance Co. v. Eljer Manufacturing Inc., 197 Ill.2d 278, 292, 258 Ill.Dec. 792, 757 N.E.2d 481 (2001), quoting American States Insurance Co. v. Koloms, 177 Ill.2d 473, 479, 227 Ill.Dec. 149, 687 N.E.2d 72 (1997). We interpret all ambiguities against the insurer that drafted the policy. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 108-09, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). “[P]rovisions that limit or exclude coverage are to be construed liberally in favor of the insured and most strongly against the insurer.” Koloms, 177 Ill.2d at 479, 227 Ill.Dec. 149, 687 N.E.2d 72, citing National Union Fire Insurance Co. v. Glenview Park District., 158 Ill.2d 116, 122, 198 Ill.Dec. 428, 632 N.E.2d 1039 (1994).

The parties ask us to construe the policy's exclusion for property in the “care, custody or control” of the hotel. For this common exclusion, Illinois courts “employ a two-part test. If the property damaged is within the possessory control of the insured at the time of the loss and is a necessary element of the work performed, the property is considered to be in the care, custody, or control of the insured.” Caisson Corp. v. Home Indemnity Corp., 151 Ill.App.3d 130, 133, 104 Ill.Dec. 508, 502 N.E.2d 1168 (1986). The owner's simultaneous access to the property at issue does not preclude a finding of care, custody or control. Country Mutual Insurance Co. v. Waldman Mercantile Co., 103 Ill.App 39, 43, 58 Ill.Dec. 574, 430 N.E.2d 606 (1981); Essex Insurance Co. v. Soy City Sock Co., 503 F.Supp.2d 1068, 1075 (C.D.Ill.2007).

As an innkeeper, Ritz-Carlton had a duty to safeguard the property of its guests. National Malted Food Corp. v. Crawford, 254 Ill.App. 415, 424 (1929); see 740 ILCS 90/1 et seq. (West 1996). The innkeeper has duties similar to those involved in a bailment with respect to property brought onto the innkeeper's premises. See Blakemore v. Coleman, 701 F.2d 967, 969 (D.C.Cir.1983); Federal Insurance Co. v. Beverly Hills Hotel Corp., 202 Cal.App.2d 120, 127, 20 Cal.Rptr. 502, 507 (1962); Kammerer v. Graymont Hotel Corp., 337 Ill.App. 434, 435-36, 86 N.E.2d 383 (1949). The bailee has custody of property subject to bailment. Maryland Casualty Co. v. Holmsgaard, 10 Ill.App.2d 1, 9, 133 N.E.2d 910 (1956). Similarly, the innkeeper has custody of the property of its guests, and, in the course of its work, it assumes a duty to protect that property. The guests property falls in possessory control of the hotel, and it forms an essential part of the hotel's work of protecting its guests' property.

Case law supports a finding that the guest's property falls within the control of the hotel. In Stewart Warner Corp. v. Burns International Security Services, Inc., 527 F.2d 1025 (7th Cir.1975), the insured provided night watchmen to guard a warehouse where the plaintiff stored some goods. The insurer limited coverage to $25,000 for property in the care, custody or control of its insured. The plaintiff sued for loss of the stored goods. The court held that the goods in the warehouse were in the care, custody or control of the watchmen, even though they had a passive role and no need for any contact with the stored goods. Stewart Warner, 527 F.2d at 1027-30.

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