Harwell v. Fireman’s Fund Ins. Co.

2016 IL App (1st) 152036 (Ill. App., 2016)

Words & Phrases

Estoppel

Trial Judge

Larsen

Appellate Judge

Hyman

Holding

Defendant’s insurer was estopped from asserting endorsement that reduced policy limit from $1 million to $50,000 because it had controlled the defense and had failed to disclose in discovery the reduced limit of insurance.

Fact Summary

Harwell appeals from the trial court’s grant of summary judgment in favor of defendant Fireman’s Fund Insurance Company of Ohio, which insured Kipling damages to Harwell, an employee of a subcontractor, claiming that Kipling had not complied with an endorsement to the insurance policy. Because equitable principles estop Fireman’s Fund from asserting that endorsement against Harwell, we hold that the trial court erred in granting summary judgment for Fireman’s Fund and should have granted summary judgment to Harwell.

Kipling’s attorneys (paid for by Fireman’s Fund, as the insurance company had a duty to defend Kipling) filed an answer to Harwell’s interrogatories stating that Kipling had liability insurance with Fireman’s Fund Insurance Company and that the maximum liability limit under the policy was $1 million.

Kipling’s policy with Fireman’s Fund included an endorsement requiring Kipling to obtain certificates of insurance and hold harmless agreements from all subcontractors. If Kipling failed to do so “at the time of an ‘occurrence’ involving a subcontractor,” then Fireman’s Fund would pay a maximum of $50,000 for all damages and defense costs due to any “bodily injury” “arising out of any covered acts” of the subcontractor. In 2008, after Kipling’s attorneys had answered Harwell’s interrogatories, Fireman’s Fund sent Kipling a series of letters informing Kipling that, because Kipling had failed to comply with the endorsement, the limits of Fireman’s Fund’s liability had been reduced to $50,000 from $1 million. Fireman’s Fund reiterated this position in 2011. But Kipling’s attorneys (who also represented Fireman’s Fund) did not amend the interrogatory answer to reflect this change, and Harwell’s attorneys had no knowledge of the change.

 

Back