Illinois Appellate Court Reverses Trial Court on Duty to Defend in Insurance Coverage for Worker

Blinderman Construction Co. was hired by the Public Building Commission of Chicago to be the general contractor for a construction project at an elementary school. Blinderman hired JM Polcurr Inc. as a subcontractor to do the electrical work on the project.

Following the contract, Polcurr purchased an insurance policy that named Blinderman as the additional insured from Hastings Mutual Insurance Co.

On July 19, 2011, Robert Woods, an employee of Polcurr, fell from a ladder while working at the school. He was rushed to a hospital; unfortunately he did not regain consciousness until a month later. He has not been able to work since that time due to his injuries.

Woods’s daughter, Cynthia Sosnowski, was appointed as the guardian of his estate and person.  In February 2014, she filed suit against Blinderman Construction Co. alleging that it failed to provide a safe and suitable platform support, that it chose not to properly supervise and inspect the work, that it failed to provide a safe workplace and failed to warn of a dangerous condition that it knew or should have known about.

Blinderman tendered defense of the case to the insurer Hastings Mutual, but Hastings rejected the tender of defense, asserting that the lawsuit was excluded under a clause limiting “liability arising out of the sole negligence of the additional insured or by those acting on behalf of the additional insured.”

Hastings maintained that Blinderman was solely negligent. Blinderman filed a third-party complaint against Polcurr. In November 2014, Hastings filed suit against Blinderman seeking a declaratory judgment that it had no duty to defend or indemnify Blinderman. Both parties filed cross-motions for summary judgment. Blinderman supported its motion with the third-party complaint filed against Polcurr.

The circuit court judge held that it could not consider any allegations of the third-party complaint when determining Hastings’ duty to defend and that the exclusion applied based on the underlying complaint, which did not allege negligence by Polcurr. Blinderman appealed.

The Illinois Appellate Court noted that when attempting to avoid a duty to defend the insurer, the insurance company “bears the burden of establishing that a claim falls within a provision of the policy that limits or excludes coverage.”

Hastings, therefore, had the burden of showing that the liability arose solely from Blinderman’s negligence, not from Polcurr’s. The appellate court noted that the circuit court judge had focused on the absence of the allegations against Polcurr in the lawsuit filed by the Woods’ estate.

However, Hastings — in its complaint — had the burden of demonstrating that Polcurr was not negligent, and that the injury stemmed solely from Blinderman’s action, but it failed to do so.

Accordingly, the Illinois Appellate Court reversed and remanded the case for further proceedings back to the trial court.

Hastings Mutual Insurance Co. v. Blinderman Construction Co., 2017 IL App (1st) 162234.

Kreisman Law Offices has been handling construction site injury lawsuits, worker injury lawsuits, premises liability cases, product liability cases, automobile crash cases and truck accident cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Melrose Park, Hinsdale, Waukegan, Joliet, Aurora, St. Charles, Geneva, Inverness, Lake Bluff, Lake Zurich, Zion, North Chicago, Chicago (Bucktown, Old Town Triangle, East Side, Hegewisch, South Shore, Beverly, Roscoe Village, Lakeview, Lincoln Square, New Town), Calumet Park, Schiller Park, Elmwood Park, Maywood and Mount Prospect, Ill.

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