INSURANCE COVERAGE UPDATE

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1 INSURANCE COVERAGE UPDATE Presented and Prepared by: Patrick D. Cloud Edwardsville, Illinois Prepared with the Assistance of: Gregory C. Flatt Edwardsville, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen B-1

2 INSURANCE COVERAGE UPDATE I. WHO IS AN INSURED ADDITIONAL INSURED ENDORSEMENTS... B-4 A. Additional Insured Endorsements... B-4 1. A-1 Roofing Co. v. Navigators Ins. Co.... B-4 2. Owners Ins. Co. v. Seamless Gutter Corp.... B-4 B. Limitations on the Definition of Insured: Czapski v. Maher... B-5 II. INSURING AGREEMENTS: SCOPE OF COVERAGE... B-6 A. Certain Cases That Fell Within Insuring Agreements... B-6 1. Property Damage Caused by Mislabeled Chemicals: United National Ins. Co. v. Faure Brothers Corp.... B-6 2. Spoliation of Evidence: Universal Underwriters Ins. Co. v. LKQ Smart Parts, Inc... B-7 3. Negligent Misrepresentation: USAA Cas. Ins. Co. v. McInerney... B-7 4. Malicious Prosecution: American Safety Cas. Ins. Co. v. City of Waukegan, Ill.... B-9 5. Property Damage Caused by Defective Construction: Milwaukee Mut. Ins. Co. v. J.P. Larsen, Inc.... B-9 B. Scope of Professional Services: Landmark American Ins. Co. v. NIP Group, Inc.... B-10 C. Scope of Advertising Injury: Pekin Ins. Co. v. XData Solutions, Inc.... B-10 D. Geographic Limitations: Pekin Ins. Co. v. Recurrent Training Center, Inc.... B-11 III. EXCLUSIONS: TAKING A CLAIM OUTSIDE OF THE SCOPE OF COVERAGE... B-12 A. Pollution Exclusion... B Erie Ins. Exchange v. Imperial Marble Corp.... B Scottsdale Indemnity Co. v. Village of Crestwood... B-12 B. Insured Versus Insured Exclusion: Yessenow v. Executive Risk Indemnity, Inc.... B-13 C. Bankruptcy Exclusion: Yessenow v. Executive Risk Indemnity, Inc.... B-13 B-2

3 D. Automobile Exclusion for Homeowner s Policy: Allstate Property and Cas. Ins. Co. v. Mahoney... B-14 IV. CONDITIONS OF THE POLICY... B-15 A. Lack of Notice: Farmers Auto. Ins. Ass n v. Burton... B-15 B. Lack of Cooperation: United Auto. Ins. Co. v. Buckley... B-16 V. EQUITABLE SUBROGATION AND HORIZONTAL EXHAUSTION: STATE FARM MUT. AUTO. INS. CO. V. DUPAGE COUNTY... B-16 VI. VII. VIII. PRIMARY V. EXCESS INSURANCE: COCA-COLA ENTERPRISES, INC. V. ATS ENTERPRISES, INC.... B-17 DETERMINATION OF THE DUTY TO DEFEND: PEKIN INS. CO. V. PRECISION DOSE, INC.... B-18 COLLATERAL ESTOPPEL: AMERICAN FAMILY MUT. INS. CO. V. WESTFIELD INS. CO.... B-18 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. B-3

4 INSURANCE COVERAGE UPDATE I. WHO IS AN INSURED ADDITIONAL INSURED ENDORSEMENTS A. Additional Insured Endorsements 1. A-1 Roofing Co. v. Navigators Ins. Co. In A-1 Roofing Co. v. Navigators Ins. Co., 2011 IL App (1st) , a general contractor was named as an additional insured to a roofing subcontractor s CGL policy. The additional insured endorsement provided that the general contractor was an additional insured with respect to liability arising out of your work for [the additional insured] by or for you. A-1 Roofing Co., 2011 IL App (1st) at 6. The CGL policy defined [y]our work as [w]ork or operations performed by you or on your behalf. Id. The additional insured endorsement further provided that neither the coverages provided by this insurance policy nor the provisions of this endorsement shall apply to any claims arising out of the sole negligence of any additional insured or their agents/employees. Id. at 2 (emphasis in the original). At the job site, an employee of a different subcontractor was killed when a boom-lift operated by the employee flipped over. The boom-lift had been leased by a subcontractor of the roofing subcontractor. The family of the deceased employee brought suit against the general contractor, the subcontractor of the roofing subcontractor who had leased the boom-lift, and two other defendants. The roofing subcontractor was not named as a defendant. The general contractor submitted the claim pursuant to the additional insured endorsement of the roofing subcontractor s CGL policy. After the CGL insurer denied the claim, the general contractor filed a declaratory judgment action, and the Illinois appellate court found that coverage was triggered. The appellate court found that the claim qualified as liability arising out of [the roofing subcontractor s] work. According to the court, the claim arose out of the work of the subcontractor of the roofing subcontractor who leased the boom-lift. This was work being performed on the roofing subcontractor s behalf and, thus, qualified for coverage under the endorsement. Id. at 6-7. Furthermore, the appellate court rejected the argument that the sole negligence exception did not apply. It reasoned that the suit against the general contractor alleged that three different defendants were also liable. As a result, the claim was not the result of the sole negligence of the general contractor. 2. Owners Ins. Co. v. Seamless Gutter Corp. In Owners Ins. Co. v. Seamless Gutters Corp., 2011 IL App (1st) B, a contractor entered into a contract with a subcontractor for a project that required the subcontractor to procure insurance for the contractor. The insurance agent for the subcontractor also issued a certificate of insurance listing the subcontractor as the insured and the general contractor as the certificate B-4

5 holder. The certificate, however, did not identify the general contractor as an additional insured, and, in fact, the certificate contained the following disclaimer: THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Seamless Gutters Corp., 2011 IL App (1st) B at 9. The general contractor did not appear as an additional insured in the policy. After a personal injury complaint was brought against the general contractor arising out of the project, the general contractor submitted the claim under the subcontractor s CGL policy. The subcontractor s carrier denied the claim asserting that the certificate of insurance did not create coverage for the general contractor. The appellate court concurred. The appellate court started by noting: Our court has recognized two lines of cases addressing the issue of coverage where there is a certificate of insurance separate from the policy itself. Where the certificate did not refer to the policy and the terms of the certificate conflicted with the terms of the policy, the certificate language governed the extent and terms of the coverage. Where the certificate referred to the policy and expressly disclaimed any coverage other than that contained in the policy itself, the policy governed the extent and terms of the coverage. Id. at 34. The appellate court determined that, in this case, the certificate was insufficient to create coverage for the general contractor. The court reasoned: Id. at 39. [The general contractor] was not listed as an additional insured in the certificate. A prior certificate issued to [the general contractor] for a prior policy period did list it as an additional insured. The fact that the certificate at issue in this case did not refer to [the general contractor] as an additional insured should have alerted [the general contractor] that there was some question as to its additional-insured status, requiring it to review the policy.... There was no evidence that [the general contractor] ever requested to view the CGL policy to verify its status as an additional insured. B. Limitations on the Definition of Insured: Czapski v. Maher In Czapski v. Maher, 2011 IL App (1st) , an automobile dealership was an insured under excess liability policies specifying that your customers are not named insured or insureds as B-5

6 defined in this policy. The defendant was test-driving an automobile when he was involved in an accident which killed an individual. When the administrators of the estate of the individual sued the defendant, the defendant submitted the claim under the excess policies, and the excess carriers denied the claim on the basis that, as a customer of the dealership, the defendant did not qualify for coverage. The appellate court concurred, reasoning: Id. at 41. We conclude that the plain and ordinary meaning of the term customer in the context of an insurance policy includes a test-driver of an automobile when the dealership gives permission to test-drive the vehicle. We do not find the term customer in this context to be subject to more than one reasonable interpretation. The courts throughout many jurisdictions, including Illinois, refer to a test-driver as a customer, the auto dealership and insurer seek to exclude test-drivers of automobiles from coverage when they use the word customer, and the general public should be well aware that test-drivers are included in the term customer. II. INSURING AGREEMENTS: SCOPE OF COVERAGE A. Certain Cases That Fell Within Insuring Agreements 1. Property Damage Caused by Mislabeled Chemicals: United National Ins. Co. v. Faure Brothers Corp. In United National Ins. Co. v. Faure Brothers Corp., 409 Ill. App. 3d 711 (1st Dist. 2011), a chemical warehouse was insured under a CGL policy which provided coverage for property damage caused by an occurrence. The policy defined occurrence as an accident and property damage as: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that cause it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the occurrence that caused it. Id. at 713. The warehouse was to relabel certain chemicals in its possession before sending the chemicals to a manufacturer. The warehouse, however, affixed the wrong labels to certain chemicals. These mislabeled chemicals were mixed into the manufacturer s adhesive product, and the manufacturer s adhesive did not work. The manufacturer then sued the chemical warehouse seeking damages and alleging that the warehouse carelessly and negligently mislabel[ed] chemical product[s]. Id. at 715. B-6

7 The warehouse submitted the claim under its CGL policy. The CGL carrier denied the claim on the basis that it did not allege property damage caused by an occurrence. The appellate court disagreed. First, the court found that the complaint alleged an occurrence, which was defined by the policy to mean an accident. According to the appellate court, [I]f an act is performed with the intention of accomplishing a certain result, and if, in the attempt to accomplish that result, another result, unintended and unexpected, and not the rational and probable consequence of the intended act, in fact, occurs, such unintended result is deemed to be caused by accidental means. Id. at 717 (citations omitted). Considering this definition, the appellate court found that the complaint alleged an accident because the warehouse unexpectedly mislabeled the chemicals and the result (mislabeled chemicals) was not expected and, thus, an accident. Id. Furthermore, the court found that the complaint alleged property damage because the harm alleged did not occur because the chemicals did not perform as promised but, rather, because [the manufacturer] was negligently given the wrong chemical, which was incorporated into its adhesive. Id. at Spoliation of Evidence: Universal Underwriters Ins. Co. v. LKQ Smart Parts, Inc. In Universal Underwriters Ins. Co. v. LKQ Smart Parts, Inc., 2011 IL App (1st) , a garage was covered under an Auto Inventory Physical Damage policy which required its insurer to pay for LOSS of or to a COVERED AUTO from any cause, including sums an INSURED legally must pay as damages as a result of LOSS to a CUSTOMER S AUTO. Universal Underwriters Ins. Co., 2011 IL App (1st) at 17. The policy further defined LOSS as direct and accidental physical loss or damage. In 2004, after an insurance company entrusted the garage with an SUV that had been involved in an accident, the SUV was accidently destroyed, and the garage was sued for spoliation of evidence. After the garage submitted the claim to its insurer, the insurer filed a declaratory judgment action asserting that a spoliation of evidence claim seeks recovery for damage to a cause of action and not recovery for damage to property and, thus, was not covered by the policy. The appellate court disagreed. The court reasoned that the underlying complaint contained factual allegations concerning the physical loss of the SUV and that the insured was now facing liability as a result of this physical loss. As a consequence, the policy was triggered and the insurer had a duty to defend. 3. Negligent Misrepresentation: USAA Cas. Ins. Co. v. McInerney In USAA Cas. Ins. Co. v. McInerney, 2011 IL App (2d) , sellers of real estate were insured under a homeowners policy that provided coverage for suits against the sellers because of bodily injury or property damage caused by an occurrence. McInerney, 2011 IL App (2d) at 6. In 2006, the sellers sold a home to a buyer. During the sale, the seller made a disclosure B-7

8 indicating that the sellers were aware of flooding or reoccurring leakage problems in [the] crawlspace or basement and that during heavy rains slight seepage has occurred. New landscaping and [two] drains have provided [a] remedy to this occurrence. On rare occasions, we experience slight seepage. Id. at 3. The buyers eventually brought a breach of contract action against the sellers alleging fraudulent and negligent misrepresentation. The Complaint alleged that after taking possession of the property, [the buyers] began to experience continuous water infiltration through the walls and the foundation into the basement, in amounts well in excess of what could be considered slight seepage. In addition, during heavier rains, the basement would become flooded and soaked. The [buyers] further alleged that, because they spent a great deal of time in the playroom and office in the basement, they began to experience severe mold-related illnesses due to the presence of stationary and airborne mold throughout the home. Id. at 4. The sellers submitted the complaint for a defense under their homeowners policy. Their insurer denied the claim on the basis that the complaint did not allege bodily injury or property damage caused by an occurrence. The appellate court disagreed. The appellate court initially found that the complaint alleged an occurrence. The policy defined occurrence as an accident. The court noted that Illinois courts have defined accident as meaning an unforeseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character. Id. at 15. The court also noted that the determination of whether an event is an accident usually focuses on whether the injury is expected or intended from the standpoint of the insured. Id. Although it recognized that no other Illinois court has addressed whether a negligent misrepresentation could constitute an occurrence, the court found that negligent misrepresentation can satisfy these conditions. It reasoned: Illinois courts have held that claims based on negligence are not necessarily excluded from coverage of general liability policies as long as the insured did not expect or intend the injury.... There is no Illinois authority for the proposition that negligent misrepresentations cannot fall within the realm of coverage under a general liability policy. As such, we find no reason why we should treat a claim for negligent misrepresentation any differently than any other claim based on negligence. Id. at 18. (citations omitted) The court further found that the complaint also alleged that the negligent misrepresentations caused property damage and bodily injury because it stated that the misrepresentations caused injuries post-sale, namely that the water infiltration damaged the buyers personal belongings and caused the buyers to suffer bodily injury. B-8

9 4. Malicious Prosecution: American Safety Cas. Ins. Co. v. City of Waukegan, Ill. In American Safety Cas. Ins. Co. v. City of Waukegan, Ill., Nos , , , 2012 WL (7th Cir. Mar. 16, 2012), after a plaintiff was exonerated in 2002 and pardoned in 2005 of a 1990 sexual assault and home invasion conviction through DNA evidence, he sued the City of Waukegan for malicious prosecution. Under Illinois law, the plaintiff s malicious prosecution claim accrued in After Waukegan reported the claim, Waukegan s insurer for 2002 filed a complaint for declaratory judgment asserting that the occurrence underlying the suit occurred in 1989 or 1990 when the plaintiff was convicted. This was important because the policy only applied to occurrences that happened during the policy period. The policy defined occurrence as injury, other than Bodily Injury, arising out of one or more of the following offenses: (a) False arrest, detention or imprisonment; (b) Malicious prosecution;... (g) Violations of the Federal Civil Rights Act of City of Waukegan, 2012 WL at *2. The Court of Appeals for the Seventh Circuit disagreed with the insurer s position. It noted that the policy s definition of occurrence identifies the tort rather than the misconduct as the occurrence. Id. at *3. Furthermore, the court observed that malicious prosecution is different than most torts. For most torts, the final element is the injury while, for malicious prosecution, the final element is exoneration. As a consequence, because the injury accrued when the plaintiff was exonerated in 2002, the relevant occurrence took place during the 2002 policy period. 5. Property Damage Caused by Defective Construction: Milwaukee Mut. Ins. Co. v. J.P. Larsen, Inc. In Milwaukee Mut. Ins. Co. v. J.P. Larsen, Inc., 2011 IL App (1st) , two contractors were insured under a CGL policy that provided coverage for liability for property damage caused by an occurrence. The contractors were named in a complaint for allegedly defectively installing and sealing windows in a condominium building. This failure allegedly caused leakage and water damage. After the contractors submitted the claim to their CGL carrier, the carrier denied the claim on the basis that the complaint only alleged a construction defect and, thus, was not covered. The trial court denied the insurer s complaint for declaratory judgment, and the appellate court affirmed. First, the court found that the complaint alleged property damage within the meaning of the policy. In finding that the complaint alleged property damage, the court noted that the complaint sought compensation for more than the replacement of the contractor s defective work which would not itself constitute property damage. Furthermore, according to the court, faulty construction may constitute an occurrence under a CGL policy if the faulty construction damages something other than the project itself. J.P. Larsen, Inc., 2011 IL App (1st) at 27. The court found that the underlying complaint alleged water damage to the units which was more than damage to the project itself. As such, the complaint alleged an occurrence, which triggered coverage. B-9

10 B. Scope of Professional Services: Landmark American Ins. Co. v. NIP Group, Inc. In Landmark American Ins. Co. v. NIP Group, Inc., 2011 IL App (1st) , an insurance broker was insured under a professional liability policy which provided coverage for all sums that the Insured becomes legally obligated to pay as Damages and associated Claims Expenses arising out of a negligent act, error or omission, Advertising Liability or Personal Injury... in the rendering or failure to render professional services as described in the Declarations. NIP Group, Inc., 2011 IL App (1st) at 6. The policy s definition of Advertising Liability included [o]ral or written publication of material that violates a person s right of privacy. Id. The policy listed the covered professional services of the insured, including the insured in its role as an insurance wholesaler, insurance managing general agent, insurance general agent, insurance underwriting manager, insurance program administrator, insurance agent, insurance broker, surplus lines insurance broker, insurance consultant, insurance claims administrator, insurance appraiser, and insurance premium financier. Id. at 7. The policy also contained an exclusion for [f]alse advertising or misrepresentation in advertising, but only regarding intentionally false, misleading, deceptive, fraudulent, or misrepresenting statements in advertising the insured s own product or service. Id. at 6. The insured was sued under a number of theories, including an alleged violation of the Telephone Consumer Protection Act, for sending unsolicited facsimiles. The insured submitted its complaint under its professional liability policy for a defense. The insurer denied the claim on the basis that the sending of unsolicited facsimiles did not constitute the rendering or failure to render professional services. Id. at 8. Focusing on the exclusion for intentionally deceptive advertisements, the court found that the policy at issue was sufficiently broad to include claims for the distribution of unsolicited facsimiles. According to the court: Id. at 44. If the exclusionary language of NIP s policy is to have any meaning at all, the language of the policy s initial insuring agreement must include NIP s advertising for its various insurance-related functions within the scope of coverage for liability incurred in the rendering or failure to render one of its host of listed professional services. Because the language of the policy excludes coverage only for specific types of advertising, but does not exclude the types of advertising alleged in the underlying complaint, we must find that NIP s insuring agreement at least potentially covers the allegations contained in... [the] underlying complaint.... C. Scope of Advertising Injury: Pekin Ins. Co. v. XData Solutions, Inc. In Pekin Ins. Co. v. XData Solutions, Inc., 2011 IL App (1st) , an insured was covered under a CGL policy that provided coverage for [a]dvertising injury caused by an offense committed in the course of advertising your goods, products or services. XData Solutions, Inc., 2011 IL App B-10

11 (1st) at 13. The policy defined advertising injury as [o]ral or written publication of material that violates a person s right to privacy. Id. at 14. After the insured was sued by a corporation for the distribution of unsolicited facsimiles in violation of the Telephone Consumer Protection Act, the insured submitted the claim under its CGL policy as an advertising injury. The carrier denied the claim alleging that coverage for an advertising injury for the distribution of unsolicited facsimiles only applies to the distribution of facsimiles to natural persons rather than corporations. The appellate court rejected this contention, stating: Id. at 15. The complaint specifically alleged that the unsolicited fax violated the TCPA and was an invasion into [the plaintiff s] and other class members privacy interests. The insurance policy provided coverage for the written publication of material that violated a person s right of privacy. Therefore, the allegations in the underlying complaint triggered [the insurer s] duty to defend [the insured] in the underlying lawsuit. D. Geographic Limitations: Pekin Ins. Co. v. Recurrent Training Center, Inc. In Pekin Ins. Co. v. Recurrent Training Center, Inc., 409 Ill. App. 3d 114 (1st Dist. 2011), an airplane pilot training center was an insured under a CGL policy which limited the policy in geographic scope as follows: This insurance applies only to bodily injury, property damage, personal injury, advertising injury, and medical expenses arising out of... the ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises; or [t]he project shown in the schedule. Id. at The policy s declaration page only identified the location to which the coverage part applies as RTE 45 S, CHAMPAIGN WILLARD AIRPORT, SAVOY, IL. Id. at 117. This was the location of the airplane pilot training center s flight simulator and classroom instruction school. A pilot trained by the center crashed his airplane approximately 170 miles from Savoy, Illinois, while operating a plane for business purposes, resulting in the death of the pilot and three others. The estates of the individuals killed in the crash brought suit against the center alleging that it had negligently trained the pilot. In the ensuing coverage litigation, the appellate court affirmed that the CGL policy did not apply to these claims because the CGL policy was limited to claims arising out of the center s premises and the claims in the underlying complaints against the center arose away from its premises. B-11

12 III. EXCLUSIONS: TAKING A CLAIM OUTSIDE OF THE SCOPE OF COVERAGE A. Pollution Exclusion 1. Erie Ins. Exchange v. Imperial Marble Corp. In Erie Ins. Exchange v. Imperial Marble Corp., 2011 IL App (3d) , a manufacturer was covered under a CGL policy containing an exclusion which excluded: [b]odily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants... [a]t or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured. Imperial Marble Corp., 2011 IL App (3d) at 7. The manufacturer made cultured marble vanities and other products, and the manufacturing process utilized methyl methacrylate (MMA) and created odorous emissions that are dispersed into the atmosphere. Id. at 3. The emissions were authorized pursuant to permits issued by the Illinois Environmental Protection Agency. The manufacturer was sued by a number of residents who resided within one mile of the manufacturing plant under theories of negligence, trespass, and nuisance and alleging personal injuries and property damage resulting from the invasion of the plaintiffs person and property by noxious odors, volatile organic materials (VOMs) and hazardous air pollutants (HAPs), including... MMA... in the emissions generated, inter alia as part of [the manufacturer s] normal business operations. Id. at 9. The manufacturer s CGL insurer denied the claim under the policy s pollution exclusion. The appellate court found that the pollution exclusion did not preclude coverage. According to the appellate court, the policy s pollution exclusion is arguably ambiguous as to whether the emission of hazardous materials in levels permitted by an IEPA permit constitute traditional environmental pollution excluded under the policy. In reaching this conclusion, the court found that [w]hen the allegations in the underlying complaint are compared to the relevant provisions in the insurance policy, it is unclear whether permitted emissions constitute traditional environmental pollution that is excluded under the policy. Id at 22. As a consequence, the insurer had a duty to defend the insured. 2. Scottsdale Indemnity Co. v. Village of Crestwood In Scottsdale Indemnity Co. v. Village of Crestwood, Nos , , , 2012 WL (7th Cir. Mar. 12, 2012), a municipality was an insured under primary and excess policies which excluded bodily injury, property damage, or personal injury arising out of, or wrongful act(s) which result in the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time. Village of Crestwood, 2012 WL at *2. The municipality provided water from wells to its citizens. In 1985, the municipality B-12

13 discovered that one of its wells was contaminated with perchloroethylene (perc). Despite representations to the state to the contrary, the municipality continued to supply its residents with contaminated water from this well until approximately When the residents discovered that the municipality had supplied them with contaminated water, the residents sued the municipality. The municipality submitted these claims under the aforementioned policies. The insurance carriers denied the claims on the basis on the pollution exclusion. In the ensuing coverage litigation, the Court of Appeals for the Seventh Circuit concurred and found that the claims were excluded. According to the Seventh Circuit, the claims against the municipality qualified as traditional environmental pollution and, thus, fell within the scope of the pollution exclusion. Id. at *3. Furthermore, the Seventh Circuit found that it was irrelevant that the Village was not the originator of the perc, as the exclusion would have little meaning if it only applied where the insured was the originator of the pollution. B. Insured Versus Insured Exclusion: Yessenow v. Executive Risk Indemnity, Inc. In Yessenow v. Executive Risk Indemnity, Inc., 2011 IL App (1st) , two former directors of the named insured were insureds under a D&O policy. The policy contained an insured versus insured exclusion, stating: This policy does not apply to: (E) any Claim by or on behalf of, or in the name or right of, the Company or any Insured Person.... Id. at 6. After the named insured filed for Chapter 11 bankruptcy and one of its subsidiaries was forced into involuntary bankruptcy, a court-appointed trustee-in-bankruptcy filed suit against the former directors. The former directors tendered the lawsuit under the D&O policy, and the insurer raised the insured versus insured exclusion. In the ensuing declaratory judgment action, the appellate court first found that the insured versus insured exclusion did not preclude coverage for the trustee-inbankruptcy s lawsuit. According to the court, because a bankruptcy trustee is not asserting claims by or on behalf of the bankrupt entity but, rather, on behalf of the estate and for the benefit of the creditors, the trustee is not a trustee of the entity, but rather, is a trustee of the bankruptcy estate. Id. at 35. Consequently, the trustee and the debtor hospital [were] not the same entity for purposes of the insured versus insured exclusion. Id. at 34. As a consequence, the insured versus insured exclusion did not apply. C. Bankruptcy Exclusion: Yessenow v. Executive Risk Indemnity, Inc. In Yessenow v. Executive Risk Indemnity, Inc., 2011 IL App (1st) , the D&O carrier also attempted to raise the policy s bankruptcy exclusion, which stated: (1) In the event that a bankruptcy... is commenced by or against the Company, no coverage will be available under the Policy for any Claim brought by or on behalf of: (a) The bankruptcy estate or the Company in its capacity as a Debtor in Possession; or B-13

14 (b) any trustee... appointed to take control of, supervise, manage or liquidate the Company.... Yessenow, 2011 IL App (1st) at 9. The appellate court found that this exclusion was unenforceable under section 541 of the Bankruptcy Code because section 541 prohibited the application of the policy s bankruptcy exclusion. According to the court, Id. at 26. [C]overage arises from a policy that has become a property interest of ihealthcare and Heartland, the debtors. That property interest is protected by section 541(c), which invalidates contract provisions that are conditioned on the insolvency or financial condition of the debtor [or] on the commencement of a bankruptcy case. Here, because the bankruptcy exclusion is conditioned on the commencement of [a] bankruptcy case, the trial court did not err in finding that the bankruptcy exclusion in this D&O policy is unenforceable under section 541(c). D. Automobile Exclusion for Homeowner s Policy: Allstate Property and Cas. Ins. Co. v. Mahoney In Allstate Property and Cas. Ins. Co. v. Mahoney, 2011 IL App (2d) , the insured was covered by a homeowners policy that excluded coverage for: [B]odily injury or property damage arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading, or unloading of any motor vehicle or trailer. However, this exclusion does not apply to: a) a motor vehicle in dead storage or used exclusively on an insured premises. Mahoney, 2011 IL App (2d) at 8. The insured was working on a motorcycle that he owned at Xtreme City Motorsports. The motorcycle was being rebuilt and was not titled or licensed. After the insured welded a brake pedal onto the motorcycle, the plaintiff took the motorcycle for a test drive. During the test drive, the brake pedal broke off, and the plaintiff was injured when the motorcycle crashed. After the plaintiff sued the insured for bodily injuries, the insured submitted the claim under his homeowners policy. The homeowners insurer denied the claim and filed a complaint for declaratory judgment. The appellate court concurred with the insurer that the motor vehicle exclusion of the policy precluded coverage. The court explained the test for this exclusion, stating: Our supreme court has explained that, where an insurance policy excludes coverage for bodily injury arising out of the ownership, maintenance, use or entrustment to others of any [motor vehicle] owned or operated or rented or B-14

15 loaned to any insured, coverage will not be found unless the alleged negligence occurred wholly independent of any * * * operation of the [motor vehicle.] Id. at 18. Applying this test to the facts of this case, the court reasoned that the allegedly faulty brake that [the insured] installed created a risk only when the motorcycle was in motion. As a consequence, [b]ecause the improperly installed brake was not wholly independent of the operation of the motorcycle, [the insurer] had no duty to defend the underlying lawsuit due to the motor vehicle exclusion in the insurance policy. Id. at 22. IV. CONDITIONS OF THE POLICY A. Lack of Notice: Farmers Auto. Ins. Ass n v. Burton In Farmers Auto. Ins. Ass n v. Burton, 2012 IL App (4th) , the driver was insured under a personal auto policy that contained a notice provision stating: We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. Burton, 2012 IL App (4th) at 6. On May 11, 2008, a fatal accident occurred, killing Timothy Buckley. On August 28, 2009, the insured was arrested and charged with leaving the scene of an accident causing the death of Timothy Buckley. The insured was convicted of this on June 10, During his defense of the criminal proceeding, the insured argued that he was not involved with the accident that killed Timothy Buckley. On April 30, 2010, the insured was sued in a civil complaint over the death of Timothy Buckley. The insured was served on June 7, 2010, and first reported the claim and accident to his insurer on July The insurer denied the claim on the basis of late notice. The appellate court concurred with the denial of the claim and found that the insured should have given his insurer notice of the claim, at the latest, on August 28, 2009, when he was arrested. The court reasoned that: While being arrested does not equate to an accident or loss, [the insured s] arrest for the hit and run death of Timothy placed him on notice of both his potential criminal and civil liability for the accident which resulted in Timothy s death. Regardless of his claim he was not involved in this accident, he should have known he could be found legally responsible for Timothy s death. As a result, his insurance policy required him to provide prompt notice of the accident and loss. [The insured s] policy clearly stated: We will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident.... [The insured] should have promptly notified his insurance company after he had been arrested for the hit and run accident. Id. at Additionally, the appellate court rejected the insured s argument that notice to the insurer could have been construed as an admission of guilt and would have been inconsistent with his defense in the criminal action. The court found that he could have provided B-15

16 notice without making any admission of guilt and, [e]ven if his belief providing notice to the insurance company would be detrimental to his defense in the criminal case, fear of criminal prosecution does not excuse the violation of an insurance policy s notice provision. Id. at 21. B. Lack of Cooperation: United Auto. Ins. Co. v. Buckley In United Auto. Ins. Co. v. Buckley, 2011 IL App (1st) , the insured s personal automobile policy had a cooperation clause stating that: As a condition precedent to the company s duty of indemnity with respect to suits against the insured, the insured shall cooperate with the Company and upon the Company s request, attend hearings, trial and examinations under oath.... Buckley, 2011 IL App (1st) at 13. After an auto accident involving the insured, the insured was sued, and the suit was referred to Cook County s mandatory arbitration process. Throughout the suit, the insured cooperated with the insurer. As the arbitration date approached, a Rule 237 notice was served on the insured to appear at the arbitration, and the insurer-retained counsel sent the insured reminders to appear at the arbitration. The insured failed to appear at the arbitration and, as a sanction, was not allowed to reject the arbitration award. According to the insured, he failed to appear due to a mix up in the dates for the arbitration. The injured party instituted a garnishment action against the insurer, and the insurer countered with a complaint for declaratory judgment. In the ensuing litigation, the trial court found that the insured did not violate the cooperation clause of the policy, and the appellate court affirmed. According to the appellate court, a breach of a cooperation clause requires (1) reasonable diligence by the insurer to secure the insured s cooperation, (2) the insured s willful refusal to cooperate, and (3) substantial prejudice to the insurer in regard to its investigation or presentation or defense of the case. After reviewing these factors, the court found that the trial court s finding that the insured did not breach the policy s cooperation clause was not against the manifest weight of the evidence because there was evidence that the insured s failure to appear at the arbitration was not willful and that, due to the availability of other evidence, the insurer did not suffer substantial prejudice in defending the case. V. EQUITABLE SUBROGATION AND HORIZONTAL EXHAUSTION: STATE FARM MUT. AUTO. INS. CO. V. DUPAGE COUNTY In State Farm Mut. Auto. Ins. Co. v. DuPage County, 2011 IL App (2d) , a prosecutor within the DuPage County State s Attorney s Office was an insured under a personal liability umbrella policy with an other insurance clause making the policy excess over all other valid and collectible insurance. DuPage County, 2011 IL App (2d) at 14. DuPage County was a self-insured municipality with a self-retention limit of up to $2 million. The prosecutor was involved in an automobile accident after having drinks with her coworkers. An individual injured B-16

17 in the accident sued the prosecutor s estate, DuPage County, and the DuPage County s State s Attorney. After defending and settling the claim, the carrier who issued the personal liability umbrella policy sought equitable subrogation against DuPage County. The appellate court found in favor of DuPage County, reasoning that the carrier who issued the personal liability umbrella policy could not satisfy the elements of equitable subrogation. Under a theory of equitable subrogation, a plaintiff insurance carrier must establish that: (1) the defendant carrier is primarily liable to the insured for a loss under a policy of insurance; (2) the plaintiff carrier is secondarily liable to the insured for the same loss under its policy; and (3) the plaintiff carrier discharged its liability to the insured and, at the same time, extinguished the liability of the defendant carrier. Id. at 34. According to the appellate court, because DuPage County, as a self-insured municipality, was not an insurance carrier, the carrier could not satisfy the first element. The appellate court also determined that the principles of horizontal exhaustion did not require DuPage County to contribute to the settlement. The general principle of horizontal exhaustion requires an insured to exhaust all available primary insurance before any excess insurance may be invoked. As a result, an excess carrier need not contribute to a settlement until the limits of a primary insurance carrier are exhausted. Id. at 47. The appellate court found that horizontal exhaustion was not implicated in this case because DuPage County was not an insurer. VI. PRIMARY V. EXCESS INSURANCE: COCA-COLA ENTERPRISES, INC. V. ATS ENTERPRISES, INC. In Coca-Cola Enterprises, Inc. v. ATS Enterprises, Inc., 670 F.3d 771 (7th Cir. 2012), a repair service company regularly performed repairs on a soft drink bottling company s delivery trucks. On November 9, 2007, an employee of the service company picked up one of the soft drink bottling company s trucks for regular maintenance and was driving it to the service company s garage when the vehicle was involved in an accident. When a lawsuit was filed after this accident, a dispute arose between the insurer for the repair service company and insurer for the soft drink bottling company regarding which insurance applied to the accident. In the ensuing coverage litigation, the court found that both of the policies applied to the accident but that the insurance for the soft drink bottling company was primary. According to the court, the rule in Illinois is that primary liability is generally placed on the insurer of the owner of an automobile rather than on the insurer of the operator. Coca-Cola Enterprises, Inc., 670 F.3d at 775 (citation omitted). Because the soft drink bottling company owned the delivery truck, the bottling company s insurance was primary. B-17

18 VII. DETERMINATION OF THE DUTY TO DEFEND: PEKIN INS. CO. V. PRECISION DOSE, INC. In Pekin Ins. Co. v. Precision Dose, Inc., 2012 IL App (2d) , a packager and distributor of single-dose units of liquid medication was a named insured under a commercial liability policy providing coverage for liability arising out of property damage, bodily injury, personal injury, and advertising injury. A complaint was filed against the insured asserting that the insured was formed by former directors of another liquid medication distributor in order to deprive the plaintiff of its business opportunities; it also alleged claims for shareholder relief and accounting, common-law fraud, breach of fiduciary duty, and successor-corporation liability. The insurer filed an action for declaratory judgment, asserting that the complaint against the insured did not allege a personal injury or advertising injury. To defeat the insurer s motion for summary judgment, the insured submitted an affidavit from its president containing a number of facts unplead in the underlying lawsuit but suggesting a personal injury or advertising injury within the meaning of the insurance policy. The trial court struck the affidavit and granted summary judgment in favor of the insurer. The appellate court affirmed. In affirming the trial court s decision, the appellate court recounted the true-but-unpleadedfacts doctrine, which states that [a]n insurer must defend only if the complaint alleges facts within or potentially within the coverage of the policy, unless the insurer possesses knowledge of true but unpleaded facts that, when taken together with the allegations in the complaint, indicate that the claim is within or potentially within the policy coverage. Precision Dose, Inc., 2012 IL App (2d) at 43. In this case, the court found that the true-but-unpleaded-facts doctrine did not apply to create a duty to defend in this case because no evidence suggested that the insurer knew of the facts contained within the affidavit before the affidavit was filed in opposition to the motion for summary judgment. VIII. COLLATERAL ESTOPPEL: AMERICAN FAMILY MUT. INS. CO. V. WESTFIELD INS. CO. In American Family Mut. Ins. Co. v. Westfield Ins. Co., 2011 IL App (4th) , a minor was an insured under a homeowners policy that contained an intentional acts exclusion. In 2004, after the minor and some friends found a number of books of matches in an alley, they began to light the matches and throw them. The minor eventually threw a lit book of matches into a business, which caught fire and burned. The minor was charged with arson and criminal damage to property and was eventually convicted of criminal damage to property. She was also sued by the business for negligence. The insurer defended the insured under a reservation of rights. After the insured was found liable for negligently causing the fire, the insurer filed a declaratory judgment action. The insurer argued that it did not have a duty to indemnify the insured through operation of the intentional acts exclusion. The trial court found that the doctrine of collateral estoppel precluded the insurer from asserting the intentional acts exclusion as a coverage defense because it was inconsistent with the verdict finding that the insured was negligent. The appellate court reversed the trial court and determined that the insurer was free to litigate whether the intentional acts exclusion precluded coverage. B-18

19 In reaching its decision, the appellate court outlined the elements of collateral estoppel: For collateral estoppel to apply, the following requirements must be met: (1) the issue decided in the prior adjudication is identical with the one presented in the suit in question, (2) there was a final judgment on the merits in the prior adjudication, and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication. American Family Mut. Ins. Co., 2011 IL App (4th) at 17. The court found that the facts of this case could not satisfy the doctrine because the jury in the underlying case only had a negligence theory before it; it was not presented with a theory asserting intentional acts. As a consequence, [b]ecause the issue decided in the prior adjudication [was] not identical with the one presented in the suit before us, there is no collateral estoppel. Id. at 18. B-19

20 Patrick D. Cloud - Partner Patrick, a native of the Saint Louis area, joined the firm in the Edwardsville office following graduation from law school in 2004 and became a partner in He worked at the firm as a summer associate in 2002 and While in law school, he served as an Associate Editor for the Washington University Global Studies Law Review. Patrick concentrates his practice on toxic tort matters, insurance coverage litigation, complex civil litigation, and governmental law. As part of his practice, Patrick routinely takes a lead role in the preparation and argument in significant pretrial motions and briefs, such as those involving issues concerning the doctrine of forum non conveniens, venue, the Illinois Frye doctrine, consumer fraud, choice-of-law issues, and insurance coverage matters. Patrick also regularly defends the firm's clients in depositions in asbestos litigation pending in Illinois and Missouri. Significant Cases Rix v. Heartland Regional Medical Center, No (5th Dist. 2008) - Affirmation of dismissal of class action claim brought pursuant to the Illinois Consumer Fraud Act regarding hospital pricing of services provided to uninsured patients. Publications "Bankruptcy and Insured versus Insured Exclusions Did Not Apply to Claims by Trustee against Company Directors," IDC Defense Update, Vol. 12, No. 15 (2011) "Equitable Subrogation and Reimbursement Did Not Apply to a Self-Insured Municipality," IDC Defense Update, Vol. 12, No. 15 (2011) "Amount of Coverage for Series of Related Legal Malpractice Claims Limited to 'Each Claim' Limit of Liability," IDC Defense Update, Vol. 12, No. 15 (2011) Co-author, "Intentional Act Exclusion (Supplement)," chapter in Commercial and Professional Liability Insurance, Illinois Institute for Continuing Legal Education Handbook (2010) Co-author, "Survey of Illinois Law: Employment Law," Southern Illinois University Law Journal (2010) Public Speaking Personal Auto Policy: The Fundamentals PLRB/LIRB Claims Conference & Insurance Services Expo conducted in Orlando, Florida (2012) Insurance Coverage Update Heyl Royster's 26th Annual Claims Handling Seminar (2011) Insurance Coverage Update Heyl Royster s 25th Annual Claims Handling Seminar (2010) Personal Auto Policy: The Fundamentals PLRB/LIRB Claims Conference & Insurance Services Expo, Nashville, TN (2011) Professional Recognition Named to the 2012 Illinois Super Lawyers Rising Stars list. The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation. Professional Associations American Bar Association Illinois State Bar Association Madison County Bar Association Illinois Association of Defense Trial Counsel Court Admissions State Courts of Illinois and Missouri United States District Court, Central and Southern Districts of Illinois United States Court of Appeals, 8th Circuit Education Juris Doctor (Order of the Coif), Washington University School of Law, 2004 Bachelor of Arts-Economics (Summa Cum Laude), University of Notre Dame, 2001 B-20 Learn more about our speakers at

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