good morning your honor is again i am scott how i represent the point about the last big insurance company the issue in this appeal is a simple two simple in fact for an appeal does the underlying complaint in the related action alleged vicarious liability or doesn't it if it does he can is obligated to defect if he doesn't he can has no such obligation to begin maintains of course that the underlying complaint is not alleged vicarious liability and truth be told h doesn't really take issue with that if he makes instead a different argument that there is a possibility that some day the underlying plaintiff might allege vicarious liability against it and at that and that if that something referred sample retained too much control failed to supervise failed to make sure the premises were safe that's in every single complaint i've ever seen and it's not the presence of those allegations that takes this case out of coverage the fact that the th underlying plaintiff alleges that the the additional insured was at fault does not is not the thing the keep this from being a cover case those are are you're correct those are completely common allegations they happen all the time and those don't negligence it doesn't contain anything to suggest that coetzee might have been blameless and yet still responsible for someone else's negligence now if the complaint the complaint very well may allege without affecting coverage ma pulte was negligent but if there are also some allegations in the complaint to the effect that pulte was focus and yet legally responsible for jim could ease negligence then that is the allegation that would be necessary to bring this within the coverage of the pekin policy and there's nothing like that in this complaint and there never has been one any place i've ever seen and i mean i'm the only and in about one hundred days but what plaintiff lawyer insured would would put that in and that happens all the time it's not at all uncommon they can and i'd respectfully take issue with the notion that this doesn't occur because there are it is fairly common to see allegations in addition to allegations that the general contractor was liable for its own negligence a world he was told i have ever but it's important to recognize where that the where the word solely appears and it's a it's it's commonly mistaken or misconstrued as to what the role of that word is in the indorsement in fact it happens in number of times and in in this court but the policies an endorsement makes pulte in additional insured only with respect to liability incurred soley as a result of some act or omission of can be construction and not propose his own independent negligence and that doesn't require that there only be allegations that that place he was responsible for it's own negligence it requires that there be allegations that pulte might have been responsible for all someone else's negligence that's a that's a liability and in fact quilty does a fairly good job in this court of making the plaintiff's case in the underlying case because pulte points to a number of ways in which it might be held by kerosene liable it wants to contract provisions it points to the relationship it claims to have enjoyed between itself and construction it makes the case for vicarious liability in this court but it makes a case that the underlying point it hasn't made hasn't tried to make hasn't alleged hasn't put in any underlying complaint and that omission i think is significant especially when there is if will to use to be believed such a good case for vicarious liability pulte can maintain that link in its briefs that there is a possibility that eventually that the underlying vicariously liable but he hasn't put in the underlying complaint he hasn't made that allegation at this point if at some point someday he does then we might have a very different case for coverage and we might have a very different issue to different issues in play in that vicarious liability would be it seeks to transfer its own potential liability to me and thereby it believes to encourage to invoke the insurance policies coverage but that's not a place resolves the issue in fact of the grounds on which the this case should be decided are the same regardless of what you consider that neither the underlying complaint filed by the plaintiff nor the underlying contribution counter claim filed by pulte alleged vicarious liability because none of them suggest that poti might be liable for someone else's negligence despite being factually blameless and that again goes back to the language oh the endorsement itself and bear in mind that the endorsement is what makes pulte an additional insured it's what says that poteat is entitle to coverage and it defines the coverage that it's entitle to it says and i'll quote it again that the o t is an additional insured only with respect to liability incurred solely as a result of some act or omission of could be construction the named insured and not for pulled his own independent negligence and in this case all the underlying complaint alleges is  negligence if you look to the allegations of the complaint and those are but a complaint is contained in an appendix to our brief it specifically says that the defendants were liable twenty is a defended of course but defended as well and there is no effort in those allegations no suggestion that any one of the defendants might be liable for someone else's negligence in fact following the list of alleged negligence  careless and negligent acts and or omissions of the defendants the plaintiff was caused to fall thereby causing severe and permanent injuries it is the acts of the defendants in this case defendant pulte that is alleged to be responsible something that's not in the complaint that is if it is a fiction fact it's not in the complaint it's a true fact there are several other defendants as well but the allegations also are of that the defendant failed to make a reasonable inspection of the premises improperly operated manage maintain the control the aforesaid premises fail to provide plaintiff with a safe place within which to work fail to warn the plaintiff of the dangerous condition fail to barricade it allowed men to work around it and permitted the drain paragraphs because it were first to the defendants as a whole also alleges that pulte did those things whether that's true or not is something be sorted out in the underlying case but whether it's alleged or not is something this court should be deciding and whether it's a d or not can be decided simply by looking to that underlying complaint the underlying complaint says that pulte was as liable because pulte was negligent it's important also to look to what the purpose and intention of this policy was the acknowledged that it covers jim can days liability the additional insured endorsement reflects the party's intention that jim can these liability be covered even when that liability is transferred to someone else through some sort of contractual arrangement perhaps through vicarious liability through any means by which some other party might become legally liable for negligence committed by the name insurer jim candy but there is an important distinction between an allegation th if you do something bad and through your net which is i get sued i'd better be covered and that's what their country right to put in no chicago is that it's not and as a person behind all of these insurances that's why we have an additional insured in the construction insured endorsement requirements if you will that the general understanding of what these policies might in other circumstances cover and this passage of the the endorsement has been interpreted that way by this very court  converses u p s case is the most similar to this one in which this court recognized that he the addition of the word solely in the use of that word to define the scope of the coverage being extended to the additional it ought to be alleged to be vicariously liable all those things seem so obvious if if both used to be believed that it's remarkable and its significance that the underlying plaintiff hasn't made those allegations recognize that they have a case for vicarious that vicarious liability against faulty even if pulte itself did nothing wrong it's of it's a matter of completeness it's a matter of pleading in the alternative it's a matter of of recognizing that there is that potential for legal liability even despite the possibility that the the general contractor might not have been negligent a similar circumstance and another circumstance different from this one but similar in this respect  i submit it is successor liability in environmental cases and certainly there are other issues involved environment in environmental claims but success or liability under the federal statutes suggests that a the owner of a piece of property may be liable for environmental damage found on that property even despite the fact that the damage may have occurred years or decades before at a time when the owner didn't own that's actually property and that's a circumstance like this is not a successful liabili we're going to agree that that's that's fair enough your honor but i think that the if you look to to the allegations of the complaint you'd not do not see any attempts to hold the the additional insured liable solely for something that the being insured did their allegations that the named insured did things wrong did things negligently there are allegations that the additional insured did things wrong and to things negligent negligently but there is no crossing of those allegations if you will there is no suggestion that one party might have been negligent because of something the other parties did even though it was not in any way at fault itself ensure indorsement reflects the piquancy promise to cover only the liability of the named insured it's named insurer jim can be construction whether that liability is being alleged against can be itself or being  alleged against some other party it follows the liability if you will not just incurred by its own insured but its own insurance liability perhaps attributable or impute able to someone else that's what the policy is intended to cover and that's what the additional insurer endorsement provides in a case like this one where the individual parties are alleged to be responsible only for their own individual negligence provable or not it's the allegations that control and put the suggestion that the coverage determination ought to be made by reference to something that could be alleged sometime in the future is at odds with decades of illinois coverage law which points us to the underlying complex the actual physical black and white piece of paper that's filed with court and is attached as an exhibit to our original complaint and found in the appendix to our initial appellate brave that's the complaint that we look to is it possible potential that there will be some day another complaint that might trigger be considered to defend of course it is but that is not the potential to which the case is speak the potential is not the universal theoretical potential anything's possible every cup fan knows it's possible the cubs might be in the world series this year but b the potential has to be measured by something more concrete something more limited and the thing that is measured by every case on this subject reflects this is the underlying complaint the underlying complain in this case forty practically acknowledges does not support the duty to defend it does not contain the necessary allegations and that's why pulte is so intense on directing his court to what might someday be alleged might be alleged it might not be alleged we don't know that at this point in time we have a concrete bright line to look at and that's the underlying complaint that's on files the first amended complaint in the underlying case it's found in the appendix to our brief and it doesn't contain any allegation that pulte is liable for can d s negligence that's what's necessary to trigger the duty to defend in this case pulte faces the potential liability of a negligent party not the vicarious liability of a party who must make amends for someone else's negligence foreshadowing of possible complaints that might someday be filed is not enough to trigger a duty to  what's necessary in this case is something that isn't found in this case an allegation that pulte was liable for jim could be negligence and liable soley for him can these things it isn't a question of whether they are also allegations that pulte was liable for its own negligence those don't stand in the way of coverage if there is some other corresponding allegation that pulte was liable for negligence and someone else it's an alternative pleading that's not uncommon in the construction context and is necessary in this case to trigger the duty to defend as reflected in piquancy policy and it's additional injured indorsement the underlying complaint is not suggest the possibility that pulte is vicariously liable for county constructions negligence and for that reason the circuit court was incorrect to decide this case in favor to show is that there are some allegations or some basis in fact to create coverage under the policy to remediate address remark  two and recognises that there are allegations which suggest that there is a vicarious liability in this case if there is record shows of page one or four pit paragraph one and one of five a paragraph  finance on control in iraq in charge of construction of the home and then in paragraph three indicates designated various work methods through their agent services and employs under section four fourteen which is the restatement section that actually raises this issue of vicarious liability in those comments they actually do indicate that for example under comment a bed one way to be vicariously liable is to actually control the operative details of the work or in the general part of lance of construction defense cases the means and methods of the work under the common see it talks about the general contractor retaining a right of supervision such that a contractor is not entirely free to do the work in his own way we're peaking once is a pleading that makes that says sold so before you're ready you're only being held we're looking for liability against you claim that raises the duty to defend other planes which do not fall under the cover which also must be refunded and that's where they're actually wrong in this case now they of the workplace would not agree that somehow an entity that felt bad would be blameless and they also make this argument that somehow we're making the case for the plaintiff in the underlying case and that's not exactly correct when we're trying to show the court as well speakin that the plaintiff may be able to make this case which is why you can't take the narrow view that he can stay king which is your only look at this underlying complaint inconsistent with wilson versus peak in the court can look outside of that underlying complaint in also by the way ours would be consistent with this court's decisions in both being by a dying case as well as a whole bird and work case which are cited favorably by the illinois supreme court now they say are counterclaim for contribution against a defendant not a third party but a defendant being sued by the plaintiff somehow is us just trying to shift our focus on saddam well certainly that could be part of the reason but more importantly why wilson is so important here is that it's the pleadings that were going in our counter claim which include our contract with their insured which included their answer to our counter claim so just additional facts that would suggest that there is potential coverage under their contract for example one of the things that section four fourteen contemplates in the case law that interpret section four fourteen is it does consider the relationship of the parties and in particular the contract in our pleadings and specifically on the record three fifty one per graft to we contract it with jim gundy instructions you sewer water work and in part that work was supposed to be under the direction of a poultry superintendent that doesn't mean that instantly there is vicarious liability it simply says that there's a possibility that there could be under a contract and under wilson it says that that's something that the courts can consider in addition to that we also have their insurance answer to our counter claim which actually bade me to the contracted mix of their liabilities and duties on the contracted mid to being in the salt water in business and they admitted to the work at the time a place election a contract no alternately and what were some cautions it's wilson says and this is all covered on pages ten through fifteen of that slip opinion wilson says that you can look at things outside of that thing so long as there is not a decision as to the ultimate issue in the case and the ultimate issue under vicarious liability would be control of the work of the sub contractor whether it be the means and methods or whether it is that the supervision was such that they were unable to do the work freely and in their own way but under four ford in that requires for pulte to be held liable under four forty inform fourteen is not bi curious liability it requires affirmative negligence failure on the part of the general contractor the owner the property to do something in or fail to join feel to do something which is to super construction and therefore i don't think his insurance covers anything in which again except in since there since he provide no insurance no coverage for anything that could occur it's illusory and you'll prevail anyway additional insured provision and how they're trying to say over the pleading needs to be so exacting even though the wall require something less as it would violate three things at least one of those since the court brought to beacons attention  the policies of insurance interpretation one of those things besides you know if there's a any facts or any possibility of coverage would be the drafting of the complaint we can't sit there and be subject to how they dress the complaint if the complaint allows some facts to be shown which could show vicarious liability then in fact what they're suggesting would counter against that i mean would have to be exact the third thing  policy it would of discord in the on or courts that it would offend would be the duty to defend covers any claim under the pleading some might potentially fall within the scope of coverage alternately would be constrained to do here is cases decided by this court which the court has interpreted because of allegations such as defendants and each of them suggest that it's asking for direct liability it's asking this court to read that into this case as opposed to looking at a decision such as hallmark homes which is sort of the contrary in the complete opposite of this case where there is an actual count that alleges the vicarious liability even in that case pekin said that that was still not enough this case is sort of closer to the hallmark homes case in the sense that we do have some allegations that would suggest that pulte could be five curious libel is one as we have some allegations that should be enough the rest of of that is we have the request to admit of the plaintiff in the underlying case where the plaintiff admits that they would be seeking vicarious liability under section four fourteen or any other theory allowed under section four fourteen now  this point with what could be proved based on what's alleged and what's alleged in the complaint does not support a finding doesn't support your instruction for example that he is liable only for the  negligence of it's named and army doesn't suggest any potential jury instruction that pulte could be held responsible for the liability that could be incurred through its own negligence we are not jumping ahead we're looking to the present we're looking to the complaint that's on file rather than doing what pulte would suggest and jumping ahead to other complaints not yet filed that might never be filed that is a improper we acknowledge that and we argue that and we rely upon this course recognition of the fact that we are concerned with the complaint currently on file i also take issue with the police council suggestion that piquant is seeking a what he can requires by the language incisional ensured indorsement is eight complaints that allows for the possibility within its allegations of a conclusion that pulte was liable solely for the negligence of the named insured it doesn't require only that allegation and it certainly doesn't require an expressed allegation to that effect but it requires some combination of allegations that can be assembled in such a way that because of the relationship because of the supervisory control that some general contractors can be proved to allege over there into their subcontractors that in some of those situations there may be legal fault despite there being no factual or evidentiary falls that's not uncommon allegation in the construction industry complaints it's not uncommon allegation in other areas that might also be covered  might otherwise be covered by this insurance policy so there must be some suggestion and again it's important to recognize the precise place in the additional insured indorsement where the concept respect to liability incurred solely as a result of some act or omission of the named insured and that doesn't require that there only be allegations of that i can't stress that enough there may very well be allegations in a cover complaint that pulte was liable for its own negligence what's critical is that there also be allegations that pulte is liable for someone else's negligence and that's not what's contained in this underlying complaint this underlying complaint says that the defendants were were liable because the defendants were negligent it says the plaintiff was injured because the defendants were negligent it says the defendant the plaintiff was injured because of the defendant's negligence and it makes no effort to separate out those defendants or suggest that any defendant is legally liable for someone else's factual negligence but that's the sort of thing that the policy covers i submit again that it's analogous in some ways to success or liability where a defendant may have done absolutely nothing wrong and yet may still be legally liable for some harm or some injury but that is a different situation from what's alleged here this is a run of the mill complaint alleging that defendants were negligent hold is a defendant the allegation is that the pulte was negligent  and the allegation is that the injury resulted from that negligence healthy does and as i've said an excellent job in this court of showing the many ways in which the underlying plaintiff might allege it to be vicariously liable points to a number of factors but the underlying plaintiff doesn't point to any of those factors and unless he does and until he does there is no cover complaint and there is no allegation that culti is liable for someone else's negligence certainly not it's liable for the