Certain Underwriters at Lloyd’s, London v. Central Mut. Ins. Co.

2014 IL App (1st) 133145 (Ill. App., 2014)

Words & Phrases

Duty To Defend: Additional Insured

Trial Judge

Hon. David B. Atkins

Appellate Judge

Justice McBride

Holding

Where agreement between contractors did not specify that insurance coverage for additional insured contractor should be primary or excess, excess “other insurance” clause in the policy applied.

Fact Summary

 

In an action arising from a dispute over the insurance coverage for the injuries suffered by an employee of a sub-subcontractor at a home construction site where the general contractor was the named insured under a commercial general liability policy issued by plaintiff and the electrical subcontractor had a policy issued by defendant that named the general contractor as an additional insurer but did not specify whether the additional coverage was primary or excess, and after defendant rejected plaintiff’s tender of its defense, plaintiff filed the instant declaratory judgment action, the trial court did not err in concluding that defendant’s policy provided only excess coverage and defendant did not breach any duty to defend, since the underlying claim did not fall within the scope of the coverage provided by defendant’s policy, especially when defendant’s policy provided that it was an excess insurer unless there was a contract requiring it to be the primary insurer, and in the absence of such a contract provision in the subcontractor agreement, the additional insurance provided by defendant defaulted to being excess pursuant to River Village; furthermore, defendant did not have to file a separate declaratory judgment action, because its answer to plaintiff's declaratory judgment action constituted a timely attempt to obtain a declaratory judgment in defendant's favor.

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