Robert M. Frey | Butler Snow LLP | December 1, 2017
We have noted, again and again, examples of disappointed Additional Insureds. Today we report that at least one Additional Insured has left the Courthouse smiling. It was, however, to paraphrase Wellington, a near-run thing.
The case is Pekin Ins. Co. v. Ledcor Constr., Inc., 2017 IL App (1st) 162623-U. The set up was this:
Pekin issued a CGL insurance policy to Procaccio, as named insured; Ledcor was an additional insured. Pursuant to a policy endorsement, Ledcor was covered only with respect to vicarious liability for bodily injury imputed from Procaccio to Ledcor as a proximate result of Procaccio’s ongoing operations performed for Ledcor during the policy period. The endorsement specifically excluded coverage for Ledcor for bodily injury liability arising out of or in any way attributable to the claimed negligence of Ledcor, other than vicarious liability imputed to Ledcor solely by virtue of the acts or omissions of Procaccio.
Pekin, 2017 IL App (1st) 162623-U, ¶ 5.
On the job site, a worker tripped over a tool belt and was injured. He sued, among others, Ledcor, the Additional Insured. The Complaint alleged that Ledcor was itself negligent. It also alleged that Procaccio was negligent. But unfortunately for Ledcor, it did not — at least expressly — allege that Ledcor was vicariously liable for Procaccio’s negligence.
The Court nevertheless found a duty to defend:
The Gregory complaint alleges, in part, that Ledcor, “by and through its agents, servants and employees,” was guilty of various acts and/or omissions. Reviewing the complaint as a whole, it is possible that Procaccio—a co-defendant of Ledcor—is one of the responsible agents, servants, or employees. Like the court in Centex Homes, we decline to parse the underlying complaint for allegations of a specific amount or type of control by Ledcor over Procaccio.
Pekin, 2017 IL App (1st) 162623-U, ¶22.
A win is a win, of course. But considering what it must have cost the Additional Insured in attorney’s fees, one is again reminded of Wellington: “Believe me, nothing except a battle lost can be half so melancholy as a battle won. . . .” Had our Additional Insured insisted on less restrictive Additional Insured language to begin with, a battle might not have been necessary.