General Contractors and Subcontractors
Deirdre Hastings filed suit against Roszak. Roszark, a general contractor, hired Rockford as a subcontractor. Subsequently, Rockford hired Area Erectors as its subcontractor. The contract between Roszak and Rockford called for Rockford to add Roszak as an additional insured to its commercial general liability policy. Pekin issued the policy with Rockford as a named insured. The trial court found that Pekin owed Roszak a duty to defend.
On appeal, Pekin argues that the additional insured endorsement of Rockford’s policy exclude Roszak from coverage. Pekin claims that it does not owe a duty to defend because the facts in Hasting’s complaint do not allege “liability incurred solely as a result of some act or omission of the named insured” as stated in Rockford’s policy. Roszark counters the argument by claiming the complaint raises a possibility of coverage and therefore Pekin does owe a duty to defend.
The court concludes that direct allegations of negligence against an additional insured do not fall within coverage granted “only with respect to liability incurred solely as a result of some act or omission of the named insured and not for own independent negligence of statutory violation”.
Since the underlying complaint directly alleges Roszak’s negligence, the additional insured endorsement does not cover these claims; a direct allegation of negligence is not “solely” as a result of the named insured. Roszak argues that the court should find that the complaint raises a possibility of coverage. However, the court concludes that it is tied to the words of the complaint, even if construed liberally in favor of the insured.
The court noted that if the allegations in the Hasting complaint include sufficient facts to leave open the possibility for coverage, then Pekin owes a duty to defend. However, the court concluded it would not read into the complaint facts that are not there. Further, the court did not find that an agency relationship existed between Roszak and Rockford. So, the court reasoned that Rockford was acting as an independent contractor rather than a subcontractor. This is important because an employer of an independent contractor is not liable for the acts or omissions of the independent contractor. So, because the complaint alleged that Roszak retained control over the detail’s or Rockford’s work, it could be held vicariously liable.
The court ultimately concluded that Pekin does not owe Roszak a duty to defend in the Hasting’s case.
Pekin Insurance Company v. Roszak/ADC, LLC,.402 Ill.App.3d 1055, 931 N.E.2d 799, 341 Ill.Dec. 902, Ill.App. 1 Dist., June 25, 2010 (NO. 1-09-1709)
