Underlying Construction Negligence Complaint Alleges Additional Insured’s Sole Negligence as Cause of Employee’s Injury
In National Fire Ins. v. Walsh Construction, the Chicago Historical Society (“CHS”) hired Walsh Construction (“Walsh”) as a general contractor for the renovation of its building. Walsh subcontracted with Adler. National Fire issued an insurance policy to Adler, in which Walsh and the CHS were named as additional insureds.
The policyholder, Adler’s employee, was injured while performing work on the CHS’s roof. The employee filed suit against the additional insureds, Walsh and the CHS, who alleged that their negligent acts or omissions caused his injuries. The insurer denied tender of the defense and indemnification. The insurer argued that the complaint made no allegation of negligence on the part of the policyholder, Adler; and because the complaint grounded liability on the additional insureds’ sole negligence, the additional insured endorsement denied coverage.
The additional insureds argued there was a possibility that the policyholder, Adler, might share liability, as well, based on its duty to provide a safe work place for its employees. The issue was whether there was “sole negligence” on the part of the additional insureds for the claimed injury, precluding coverage under the additional insured endorsement provision of the policy.
The court in National Fire v. Walsh Construction held that the underlying construction negligence complaint alleged the additional insureds’ sole negligence as the cause of the employee’s injury. The mere fact that an employee of the primary insured, Adler, was injured on the job site was, by itself, insufficient to give rise to an inference of negligence on the party of the primary insured, Adler, so as to trigger a duty to defend by the insurer. Thus, it was clear and free from doubt that the CGL policy’s “sole negligence” exclusion applied.
National Fire Ins. of Hartford v. Walsh Construction Co, 392 Ill.App.3d 312, 909 N.E.2d 285 (Ill.App. 1 Dist., 2009).
