Johnson & Bell Shareholder William K. McVisk and Associate Attorney, David J. Rock, recently obtained judgment on the pleadings on behalf of their 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. Messrs. McVisk and Rock wrote the briefs, and Mr. Rock argued the cross-motions before Judge Demacopoulos.
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, McVisk and Rock 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, they 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.
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