David J. Rock: Representative Cases
- Obtained summary judgment in CGL and Employers Liability Policy Dispute. Obtained summary judgment in favor of a client in a complex insurance coverage case in the United States District Court for the Northern District of Illinois. In this case, we represented an insurer which issued Commercial General Liability (CGL) and Employers’ Liability (EL) policies to its insured. The named insured was an Illinois company that provided laborers to companies in a number of states. While working on a project in New York, an employee of the named insured was injured and filed suit against numerous parties that were working on the site. One of these parties filed a Third Party Complaint against the named insured, which then sought coverage for the lawsuit under its CGL and EL policies. In response, filed a declaratory judgment action in the Northern District of Illinois, seeking a declaration that his client had no duty to defend or indemnify their named insured for the claims asserted in the Third Party Complaint. Under the CGL Policy, we argued that the Employer’s Liability exclusion precluded coverage for the Third Party Complaint, because the injured person was an employee of the named insured and the “insured contract” exception to the exclusion did not apply, because the agreement between the named insured and the contractor did not include an agreement that the named insured would indemnify the contractor for the contractor’s own negligence. The Court agreed with our client’s position, holding that the contract at issue did not contain any language indicating that the named insured would provide indemnity for others’ own negligence, and therefore that it was not an “insured contract”. Under the EL Policy, coverage for the named insured was limited to work performed in certain states, which did not include New York. However, the policy also included a coverage part titled “Other States Insurance” which provided that if the named insured begins work in any state after the effective date of the policy and is “not insured or self-insured for such work, all provisions of the policy will apply . . .” We argued that a separate EL policy issued by the New York State Insurance Fund to the named insured clearly showed that the named insured was separately insured for its work at the site where the injuries to its employee occurred. The Court agreed, holding that the named insured had other insurance that applied, and therefore that no coverage was available under the policy issued by our insurance carrier client. Since there was no coverage available under either the CGL Policy or EL Policy, the court granted our Motion for Summary Judgment, and entered a judgment in favor of our client that it had no duty to defend or indemnify the named insured. Acuity v. Kessor Enters., Ltd., 2017 U.S. Dist. LEXIS 134768 (N.D. Ill. 2017).
- Obtained summary judgment in favor of a client in a complex Underinsured Motorist (UIM) insurance coverage case in Cook County Chancery court. In this case, the plaintiff previously won an arbitration award for his UIM claim in the amount of $3 million against our client, an insurance company. Following the award, our client paid its $1 million policy limit less setoffs for the amount the plaintiff received from the other driver involved in the accident and for the amount of workers’ compensation benefits that our client paid as the workers’ compensation carrier for the employer. Plaintiff claimed that the set offs were improper due to a “settlement agreement” that our client entered into allowing the plaintiff to accept money from the other driver. Furthermore, the plaintiff argued that our client waived its right to assert set offs for the workers’ compensation payments due to the language of the settlement contract and correspondence in the workers’ compensation case. At this point, we filed a declaratory judgment complaint against the plaintiff contending that the set offs were proper. In a lengthy written opinion, the court agreed that our client was entitled to setoffs for workers’ compensation amounts paid and for the settlement of the third-party action, and found that there was no “settlement agreement.” Further, he held that our client did not waive its right to assert any setoffs in its correspondence, as plaintiff claimed. Finally, he found that the setoffs were not against public policy. The ruling saved our client in excess of $300,000.
- No Additional Insured Coverage Where Contract Requiring That A Subcontractor Name A General Contractor As An Additional Insured Was Executed Subsequent To The Accident. In this case, the putative additional insured, a contractor who had performed some construction work inside a building, hired our client’s named insured as a subcontractor to perform some flooring work. The contractor and subcontractor agreed to terms, including a purchase price. The agreed-upon terms did not include a requirement that the subcontractor name the contractor as an additional insured. Suit was filed by an underlying plaintiff alleging that she was injured when she was walking nearby the area where the construction was taking place. After the accident, the contractor obtained an agreement executed by the subcontractor requiring that the contractor be named as an additional insured on the subcontractor’s insurance policies. The court held that because the contract was executed subsequent to the accident, there was no coverage available to the contractor as an additional insured, relying on the policy language that the subcontractor must have “agreed in writing in a contract or agreement that [a party] be added as an additional insured on [its] policy” and finding that no such agreement existed on the date of the accident.
- No Coverage Available To An Insured Pizza Restaurant Where Its Employee Was Delivering A Pizza And Caused An Auto Accident. In this case, the insured was a pizza restaurant, which was sued in an underlying case for wrongful death by the estate of a person who died in a motor vehicle accident. The insurer’s general liability policy included a standard “Aircraft, Auto or Watercraft” exclusion precluding coverage for bodily injury “arising out of the ownership, maintenance, use or entrustment to others of any . . . auto . . . owned or operated by or rented or loaned to any insured.” The insured was operating under a trade name but was actually incorporated, but never advised the insurer that it was actually a corporation. Thus, the insured made the argument that the auto was not being used by “the insured” because it was actually being used by the corporate entity and the corporate entity’s employee, and therefore the exclusion did not apply. We responded by arguing that if the corporate entity and its employee were not “insureds”, then there could be no coverage for them under the insuring agreement and the auto exclusion would be rendered irrelevant. The court ultimately rejected the insured’s argument, holding that no coverage was available to the corporate entity or to its employee, since they were not the insureds on the policy, and even if they were insureds on the policy, the auto exclusion would have applied. Summary judgment was granted in the insurer’s favor. Mid-Century Ins. Co. v. Pizza by Marchelloni, 2018 U.S. Dist. LEXIS 78859 (C.D. Ill. 2018).
- No Coverage Under Homeowners Policy Where Injured Person Was A “Resident” Of The Premises. Obtained summary judgment in favor of insurance carrier client on the basis of an exclusion for bodily injury to “residents of the residence premises” when underlying plaintiff alleged she resided in the insured building in which she was injured and discovery revealed she lived in the building for more than one year prior to the accident and more than one year after the accident. The underlying plaintiff and insured contended that the term “resident” was ambiguous under Illinois law and that as a month-to-month tenant, the underlying plaintiff did not constitute a “resident” when that term was interpreted in favor of the insured, since she could have moved out at any time. We argued that Illinois law shows that the meaning of “resident” is unambiguous and that under the plain facts of the case, the underlying plaintiff was residing in the building at the time of the accident. The court ultimately found in our client’s favor, holding that the underlying plaintiff was a resident, and therefore that the exclusion for bodily injury to “residents of the residence premises” applied, such that no coverage was available under the policy. The insurer saved its entire $300,000 policy limits.
- Vicarious Liability Issue Earns General Contractor a Defense Under Subcontractor’s GL Policy. Obtained judgment on the pleadings on behalf of our construction contractor client in an insurance coverage dispute in the Chancery Division in Cook County. The dispute involved whether the contractor was entitled to a defense under its subcontractor’s general liability insurance policy, which provided coverage only where the putative “additional insured” could potentially be held vicariously liable in the underlying case for acts or omissions of the named insured. The parties filed cross-motions for judgment on the pleadings/summary judgment. Despite the fact that the underlying complaint only alleged direct negligence against the contractor and that the contract provided that the subcontractor was an independent contractor, we argued that the underlying complaint did not eliminate the possibility that the contractor could be held vicariously liable because courts should not parse the underlying complaint for allegations of control when determining an insurer’s duty to defend. Additionally, we argued that if the court did make a determination as to the level of control by the contractor over the subcontractor, the court would be making a determination regarding a key issue in the underlying case, which is not permitted in a declaratory judgment action under Illinois law. Ultimately, the court sided with our client’s position that there was at least a possibility of vicarious liability alleged in the underlying complaint and granted its motion for judgment on the pleadings, requiring the insurer to defend the contractor in the underlying action. Johnson & Bell’s contractor client’s fees in the underlying action are now required to be reimbursed by the insurer, resulting in a significant cost savings for their client.