## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

United National

Insu rance Co. v. 200 North Dearborn Partnersh ip , 2012 IL App (1st) 100569

Appellate Court Caption UNI TED NATI ONAL I NSURANCE COMPANY
, a Pennsylvania Corporation, Plaintiff-Appellee and Counterdefendant and CrossAppellant, v

. 200 NORTH DEARB ORN PARTNERSHI P, an I llinois Partnership, Ba ird & Warner, Inc., Kenilworth, Inc., Warner Investment Company
, Inc., and E l z ie Hig g enbottom, Def endants-A

ppellants and Counterplaintiffs and Cross-Appellee s (Ha rtford Casualty Insuranc e Company
, Interve nor Plaintiff-Appellant; United National Ins u ranc e Company , Interve nor De fenda nt-Appellee and Cross-Appe llant).

District & N o. First District, F irst Division
Docke t No. 1-10-0569

Rule 23 Order

filed
Rehea ringdenied Rule 23 Order withdrawn Opinion filed August 6, 2012 August 30, 2012

October 15, 2012 October 22, 2012

Held (N ote : Thi s syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er o

f D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action arising from a dispute over the insurance cover ag e fo r t h e fata l inj u ri es s u ffered by a janitor who fell down an elevator shaft in a

commerc ial building insured by plaintiff, plaintiff was not estopped from

asser ting its policy defe nses, despite its d elay in filing a decla ratory judgme nt action, and ther e wa s no err or in the finding that the dec ease d was the insure d’s employ ee a nd that the employ ee liability exclusion i n the policy prec luded indemnification.Dec ision Under

Review Appea l from the Cir cuit Court of Cook County
, No. 06-CH-17017; the Hon. Danie l A. Riley , J udg e, pre siding.

J udg ment Affir med.

Counsel on Appea l Tressler L L P, of Chicag o (Michae l J

. Duffy and Matthew J

. Deve reux, of counsel), f

or appe llants.

L eahy
, Eisenber g & Fr aenke l, L td. (Edwa rd J

. L eahy and Ronald S

. Keske , of counse l), and F rase r Tre bilcock Davis & Dunla p, P.C. (Anita G. Fox, of counsel) , both of Chicag o, for a ppellee.

Panel J USTI CE KARNEZ I S delivere d the judgme nt of the court, with opinion. Presiding J ustice Hoffma n and J ustice Rochford concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endants and counter

p l ai n t i ff s -a p pellants and cross-a

ppellees 200 North De arbor n Partnership, Ba ird & Warner, Inc., Kenilworth, Inc., Warner Investment Company
, Inc., and Elzi e Hig g enbottom, and intervenor plaintiff-a ppellant and cross-a

ppellee Har

tf o r d Casualty Insuranc e Company (collec tively defe ndants unless othe r w is e in d ic a

te d ) a p p e a l from the trial court’s August 4, 2009, and J anuar y 27, 2010, order s. Plaintiff and counter defe ndant and i n t erve nor defe ndant-a

ppellee and cross-a

ppellant United National Insuranc e Company (United National) cross-a

ppeals from the trial court’s August 4, 2009, and J anuar y 27, 2010, order s. We affirm f

or the followingrea sons.

¶ 2 Ba ckg round ¶ 3 Under lying L awsuit ¶ 4 This appea l conce rning the extent of the respe ctive parties’ ins u ra n ce co v erag e stems from the underly

ing lawsuit fi l ed after the dece ased, Marian Gal, died due to an elevator

m al fu n ction at a building located at 200 North Dea rborn Parkwa

y in Chicag o. Gal v. 20 0 North Dearbor

n Partnership, No. 0 1 L 0 1 0485 (Cir. Ct. Cook Co.). The accide nt occur red

on J uly 19, 2001. The reco rd on appea l does not contain a copy of the orig inal complaint. Howeve r, documents in the rec ord ref ere nce tha

t it was filed on or a

bout Aug ust 21, 2001. The rec ord contains the fifth amende d complaint, which was filed on J une 22, 2006. The fifth amende d complaint named as defe ndants 200 North Dea rborn Partnership, Aar g us Security

-2-Sy stems, Inc., Sch i n d l er Elevator Corporation, Ba ird & Warner, Inc., Ba ird & Warner

Manag ement Group, Inc., B& W Manag ement Group, Inc., E lz ie H ig g e nbottom, Kenilworth, Inc., and Warner Investment Company
, Inc., f/k/a Kenilworth, Inc. I t alleg ed that on the day of the acc ident, Gal was at the building located at 200 North Dea rborn Parkwa

y perf orming janitorial servic es. De spite previous malfunctions with one of the elevators, Gal was g iven

an acc ess key to the elevator by an Aar g us secur ity g uard. When the elevator doors opened, the elevator was not at the same floor as Gal, and he plummeted down the elevator shaft to his death. The suit wa s ultim ately settled in November

2006.

¶ 5 The Agree ment and Insuranc e Policies ¶ 6 In 1995, Aar gus Security contra cted with 200 North Dear born in a c ontinuing ser

vices
ag ree ment (Ag ree ment) to provide cer tain service s with respe ct to the proper ty located at 200 North Dea

rborn Parkwa

y in Chicag o. The Agre ement provided that Aar g us would name Ba ird & Warner, Inc., and the “[o] wner ” as “additional insureds.” “Owne r” was define d as “200 Nor th Dear born Partner ship.” ¶ 7 United National issued a commerc ial g ener al liability policy to Aargus, which cove red the rele vant time period whe n G a l’ s a c c id e nt o c c u r r e d

. T he “additional insured” endorse ment did not specific ally name who was an additional i n s u re d ; rathe r, it stated “blanke t wher e

r e q u ir e d b y c o ntr act.” The “additional insured” endorse ment contained two limit ations. First, the insurance would not apply to an additional insured’ s own ac ts or omissions

. Second, if l i ab i l i t y wa s to be imposed on the additional insured beca use of its acts or omissions and those of the named insured, the insurance would serve as “coinsura nce with any other insurance available to the additional insured, in proportion to the limit s of liability of all involved policies

. ” T h e policy also contained an employ er’ s liability exclusion, which excluded cover ag e for

bodily injury to an employ ee of the insured arising out of and in the

course of employ

ment by the insured. Fur

ther, the policy had a $ 1 m i l l i o n per- occur renc e limit

. United National initially denied cover ag e to 200 North Dea rborn and Ba ird & Warner; howeve r, United National later provide d a def ense unde r a r eser

vation of rig hts. ¶ 8 200 North Dea rborn was also insured by H a r tf o r d Ca sualty Insuranc e Company . Har tford issued a commerc ial g ener al liability insurance policy to 200 North Dea rborn, which cover ed the rele vant time period when Gal ’s ac ci d en t occur red. The policy had a $1 milli on peroccur renc e limit

. Har

tford undertook 200 North Dea rborn’ s d ef

en s e in the underlying lawsuit.

¶ 9 Dec laratory J udg ment Action ¶ 10 Uni t ed Na t i o n al fi l ed t h i s d ec l ar atory judgme nt action on August 18, 2006. The following defe ndants wer e named: 200 North Dea rborn, Ba ird & Warner, Inc., Kenilworth, Inc., Warner Inves t ment Company
, Inc., Elzi e Hig g enbottom and Edwar d Gal, as specia l administrator of the estate of Marian Gal, decea sed. Unit ed National acknow ledg ed that it

was defe nding its named insured Aar g us in the underly ing lawsuit. United National further acknow ledg ed that it had ag ree d under a rese rvation of rig hts to defe nd 200 North Dea rborn

an d Ba i rd & Warner pursuant to the “additional insured” endorse ment in its policy wit h

-3-Aar g us. Howeve r, United National contende d that it had no duty to de fend or indemnify as

add it io n a l insured defe ndants Kenilworth, Inc., Warner Investment Company
, Inc., and Elzi e Hig g enbottom, whom it ref err ed to collectively as the “non-ide ntified defe ndants.” Ac cording to the decla

ratory judgme nt complaint, the “non-ide ntified defe ndants ” we re added a s defe ndants in the third amende d complaint in the underly ing c ause in 2003. ¶ 11 The parties filed cross-motions for s u mma ry judgme nt. United National soug ht summary judgme nt ag ainst defe ndants on the basis that Kenilworth, W ar n er Investment Company
, Inc., and Hig g enbottom wer e not additional insureds under United National’s policy with Aar g us. United National further alleg ed that it did not have a duty to defe nd or indemnify those defe ndants and wa s not estopped from de nying c overa g e. ¶ 12 Har

tford, on behalf of itself and all defe ndants, soug ht summary judgme nt ag ainst United National on the basis that United National was estopped from denying c overa g e or r aising
any cover ag e defe nses beca use United National brea ched its duty to defe nd. Har tford alleg ed that Uni t ed National’s duty to defe nd was trig g ere d by the alleg ations in the underlying complaint and since United National waited an unrea sonable amount of time to bring the decla ratory judgme nt action, United National should be estopped from litigating its duty to indemnify

defe ndants. ¶ 13 The court ruled on the m otions in a written order on August 4, 2009. The court denied United National’s motion and g rante d Har tford’s motion in part. The court deter mined that United National had a duty to defe nd the “non-ide ntified defe ndants” under the “additional insured” endorse ment since they wer e partn er s o f 200 North Dea rborn. The court also deter mined that defe ndants had targ eted tender to Un ited National rathe r than to Har tford and United National was require d t o re i m b u rse Har tford for all sums paid in defe nse and settlement of the unde rlying la wsuit. ¶ 14 United National filed a motion for reconsider ation or cla rification of t he court’s order

. The court ruled on the motion in a written order on J anuar y 27, 2010. The court order ed: (1) United National was not estopped from asser ting defe nses to t h e duty to indemnify defe ndants; (2) defe ndants 200 North Dea rborn and Ba ird & Warner wer e not entitled to indemnification from United National since the policy issued by United National excluded

cover ag e for bodily injuries to an employ ee of the insured and the dece ased was the insured’s employ ee; ( 3) any rema ining duty of United National to r eimburse Har tford was limit ed to the remaining lim its of Unit ed National’s policy ; and (4) there was no just rea son to delay enfor ceme nt or appea l of t h e order

. Def endants now appea l from the court’s order s and United National c ross-appe als from the or ders.

¶ 15 Appea l ¶ 16 Summary judgme nt is appropr iate wher e “the pleading s, depositions, and admissions on file, toge ther with the aff

idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the m oving party is entitled to a judgme nt as a matter of l aw.” 735 I L CS 5/2- 1005(c) (West 2010). The i n terpre tation of an insurance policy and the cover ag e provided

are questions of la

w th a t a r e a p p r o p riate for resolution throug h summary judgme nt. American Servic e Insurance Co. v. Jones
, 401 I ll. App. 3d 514, 520 (2010). We revie w the trial court’s

-4-summary judgme nt ruling under a de novo standard of revie w. American Servic e Insurance

Co. , 401 I ll. App. 3d at 520. ¶ 17 An insurer’ s duty to defe nd is much broade r than its duty to indemnify its insured. Crum & Forster Managers Corp. v. Resolution T r ust Corp.
, 156 I ll. 2d 384, 393 (1993). The primary function of the court when construing an insurance policy is to asce rtain and enfor ce the intentions of the parties as expressed in the ag ree ment. Crum & Forster Managers Corp.
, 156 I ll. 2d at 391. In deter mining whether an insurer has a duty to defe nd, a revie wing court must compar e the alleg ations of the underly ing complaint to the re l ev ant terms of the insurance policy at issue. Clarendon America Insura n c e Co

. v

. B

. G

. K. S e c urity Servic es, Inc.
, 387 I ll. App. 3d 697, 702-03 (2008). I f t h e u n d er l y ing complaint alleg es fac ts within or potentially within the policy ’s cover age, t h e insurer’ s duty to defe nd arises even if the alleg ations are g roundless, false or fr audulent. Clarendon America Insurance Co.
, 387 I ll. App. 3d at 703. ¶ 18 Indemnification is a separ ate question fr o m t h e m u ch b roader duty to defe nd. The question of whether the insurer has a duty to indemnify the insured for a particula r liability is only ripe for considera ti on if the insured has alre ady incurre d liability in the underlying claim ag ainst it. Outboard Marine Corp. v. Liberty Mutual Insurance Co.
, 154 I ll. 2d 90, 127 (1992). ¶ 19 When a

n insurer conclude s the claims in a lawsuit ag ainst its insure d do not f all within the cover ag e provided by the policy
, the insurer must either: (1) defe nd the lawsuit under a

rese rvation of rig hts, or (2) seek a decla ratory judgme nt that no cover ag e exis ts. Employe rs Insurance of W

ausau v. Ehlco Liquidat ing Trust
, 186 I ll. 2d 127, 150 (1999). “I f the insurer fails to take either of these steps and is later found to have wrong fully denied cover ag e, the insurer is estopped from raising policy defe nses to cover ag e.” Ehlco Liquidat ing Trust
, 186 I ll. 2d at 150-51. The estoppel doctrine applies only wher e an insurer has brea ched its duty
to defe nd. There fore
, a court inquires whether the insurer had a duty to defe nd and whether i t b re ached t hat dut y

. Ehlco L iquidating Trust
, 186 I ll. 2d at 152. Howeve r, application of the estoppel doctrine is not appropr iate if the insurer had no duty to defe nd, or if the insurer’ s duty to defe nd was not prope rly trig g ere d. Ehlco Liquidati ng Trust , 186 I ll. 2d at 151. ¶ 20 De fe n d an t s co n t end on appea l that: (1) United National should be estop p ed fr o m contesting its duty to indemnify Har tford; (2) United National should be estopped from

asser ting the employ er’ s liability exclusion; and (3) United National’s liability should not be limit ed to the rema ining limit s of its policy

. Har tford seeks reimbursement from United National in the amount of $475,000, for the sums it paid to settle the underly ing lawsuit, as well as pre

judgme nt interest ac crue d there on. ¶ 21 We f

irst c onsider the trial court’ s determination that United Na tional w as not e stopped from contesting cover ag e. The trial court stated, “United’ s filing of a decla ratory judgme nt prior to tr ial or settlement does not e stop United from litigating their duty to inde mnify the defe ndants.” Def

endants maintain that since United National waited almost four y ear s afte r 200 North Dearbor

n’s t ender of defense and less than one month befo re t ri al was to beg in in the underlying lawsuit to file this decla ratory judgme nt action, United National brea ched its duty to defe nd 200 North Dea rborn and as a result should be estopped from rely ing on any

-5-defe nses to indemnity cover ag e. ¶ 22 Her e, we find that United National was not estopped from contesting cover ag e bec ause United National de fende d 200 North De arbor n and B aird & Warner under a rese rvation of rig hts and also filed a decla ratory j u d gment action, which soug ht, among other relief
, a deter mination of its rig hts to defe nd the “non-identified defe ndants” (Ke nilworth, Warner and Hig g enbottom). The rec ord indicates that 200 North Dea rborn first tender ed its defe nse to Un i t ed National on September 27, 2002. On Fe bruar y 12, 2003, Ba ird & Warner also tender ed its defe nse to United National. That letter indicated that both 200 North Dea rborn and Ba ird & Warner w ere targ eting tender to United National and w anted United N ational to exclusi vely

defe nd them rathe r t han their own insuranc e provide r, Ha rtford, pur suant to the principles set forth in John Burns Construction Co. v. Indiana Insurance Co.
, 189 I ll. 2d 570 (2000). United National initially denied that it had a duty to defe nd 200 North Dea rborn and Ba ird & Warner; howeve r, in a Fe bruar y 1, 2005, letter, Un i t ed National ag ree d to defe nd 200 North Dea

rborn and Ba ird & Warner under a rese rvation of rig hts. United National’s position was based on its revie w of all the materia ls it had rec eived as well as the third amende d complaint in the underly ing lawsuit. Next, in an undated letter from defe ndants’ counsel to Uni t ed National, counsel for the first time ref ere nced the “nonidentified defe ndants” and claimed that they had tende red the ir defe nse to United National in Fe bruar

y 2003; howeve r, no documentation supported the claim. Def endants’ counsel did subsequently alleg e in an undated letter sometime afte r Marc h 2006 that the “non-ide ntified defe ndants” wer e either partne rs of 200 North Dea rborn or succe ssors in interest to Ba ird & Warner. As noted above, the fifth amende d complaint in the underly ing lawsuit was filed in J une 2006, and United National’s compl ai n t for declar atory judgme nt was filed in August 2006. In ligh t o f t h e long proce dural history of this case , we find that United National’s decla ratory judgme nt suit was filed within a rea so n ab l e am ount of time so as to prec lude estoppel. Def

endants ref

er to United National’s “four -y ear ” delay in bring ing the decla ratory judgme nt suit as unrea sonable. Howeve r, as noted above, 200 North Dea rborn and Ba ird and Warner tender ed their defe nse to United National in 2002 and 2003, and Uni t ed National
ag ree d to defe nd them under a rese rvation of rig hts in 2005. United National only lear ned the “non-ide ntified defe ndants ” wer e seeking cover ag e under United National’s “additional insured” endorse ment some t i me in 2005 or 2006. There fore
, its filing of the decla ratory judgme nt suit in August 2006 was not so delayed or unrea sonable to apply estoppel. United National did not sit on the sidelines and ignor e its d u t i es

. Un i ted National defe nded 200 North Dea

rborn and Ba ird & Warner under a rese rvation of rig hts a nd subsequently filed a decla ratory judgme nt action shortly

afte r l ear ning the “non-ide ntified defe ndants” c laimed

cover ag e under it s p o li c y

. A lt h oug h the trial court ultimately deter mined that United National brea ched its duty to defe nd the “non-ide ntified defe ndants,” estoppel does not apply beca use United National f

iled a dec laratory

judgme nt action. ¶ 23 We next consider the trial court’s deter mination that the employ ee liability exclusion in United National’s policy excluded cover ag e for Gal beca use he was the insured’s employ ee. Def endants contend that th e t ri al court’s deter mination was in err or and United National should reimburse the sums paid by Har tford to settle the unde rlying la wsuit. ¶ 24 As n o t ed ab o v e, Un i t ed Na t i onal’s policy also contained an employ er’ s liabilit y

-6-exclusion, which excluded cover ag e for bodily injury to an employ ee of the insured arising

out of and in the c ourse of employ ment by the insured. ¶ 25 Notwithstanding the parties’ arguments to the trial court reg arding the exclusion, the trial
court did not specific ally addre ss the exclusion in its August 4, 2009, order

. Upon Un i t ed National’s moti on to rec onsider or for clarif ication, t he trial court addressed the exclusion i n its J anuar

y 27, 2010, order
, deter mining that the exclusion applied to pre cl u d e indemnification. ¶ 26 Def

endants argue that the trial court’s deter mination was in err or beca use the trial court “improper ly made a fac tual deter mination as to Gal’s employ ment status without conducting the appr o priate evidentiar y hear ing to consider prese ntation of admissible evidenc e, as opposed to pure argument.” Def endants further point out that the underly ing complaint did not alleg e that 200 Nor

th Dear born wa s Gal’s e mploy er. ¶ 27 United National notes that it prese nted ev i d en ce t o t h e t ri al co u rt t hat 200 North Dea rborn admitted that Gal was its employ ee i n v ar i o u s documents 200 North Dea rborn submitt ed to the trial c ourt in the underly ing la wsuit. ¶ 28 Her e, we find n o er ro r i n the trial court’s deter mination that Gal was the insured’ s employ ee, and as such, the employ ee liability exclusion in the policy prec luded i n demnification. The trial court considere d the evidenc e prese nted by the parties, which included copies of documents filed in the underly ing lawsuit in which 200 North Dea rborn admitted that Gal was its employ ee. Mere ly beca use the underly

ing complaint itself did not alleg e that 200 No rt h De arborn was Gal’s employ er, or beca use the trial court in the underlying lawsuit made no finding as to Gal’s employ er, did not prec lude t h e t ri al court from makingsuch a f

inding in the instant ca se. ¶ 29 We next consider the trial court’s deter mination that any re m ai n i n g d u t y o f United National to reimburse Har tford was limit ed to the rema ining limit s of its policy

. Def endants contend that United National’s liability should not be li mited to its $1 milli on policy limit beca use United National failed to defe nd its insureds in the underly ing lawsuit. Her e, howeve r, as stated above, we found that United National was not e stopped from rely ing on any policy defe nses, which includes l imiti ng its cover ag e to the $1 m illion per- occur renc e limit . We find no err or in the trial cour t’s deter mination.

¶ 30 Cross-Appea l ¶ 31 United National contends in its cross-ap p ea l t h at: (1) the “non-ide ntified defe ndants”

wer e not additional insureds under United Nati o n al ’s policy ; (2) United National did not brea ch the duty to defe nd beca use United National complied with the terms of the “additional insured” endorse ment; (3) the targ eted tender rule in John Burns does not apply to the fac ts of this case ; and (4) pr ejudg ment interest does not a pply

. ¶ 32 We first addre ss whether the “non-ide ntified defe ndants” wer e additional insureds under the “additional insured” endorse ment in the policy

. United National argues that beca use the policy only listed “owne r” and Ba ird & Warner as additional insureds, and “owne r” was only define d as “200 North Dea rborn Partnership,” the “non-ide ntified d efendants” wer e not additional insureds.

-7-¶ 33 The trial court deter mined that the “non-ide ntified defe ndants” wer e additional insureds beca use they wer e partne rs of 200 North Dea rborn, noting that a partne r’s liability was coextensive with the partne rshi p i t s el f. United National does not dispute this; rathe r, it contends that the “additional insured” endorse ment applied to 200 North Dea rborn, but not to a ny of its partne rs. Her e, howeve r, there is no such languag e in the policy excluding any past or prese nt partne rs of 200 North Dea rborn. We decline t o ad o p t Uni ted National’s interpre tation that as “owne r,” “200 North Dea rborn Partnership” did no t in c lu d e the partne rs within the partne rship. There fore
, we ag ree with the tr i al court that United National had a duty to defe nd the “non-ide ntified defe ndants” under the “additional insured” endorse ment. ¶ 34 United National next contends that it did not brea ch it s d u t y t o d ef en d beca use it complied with the terms of the “additional insured” endorse ment. United National argues that with respe ct to the “non-ide ntified defe ndants,” it did not have a duty to defe nd them and there fore could not have br eac hed the duty to defe nd. Wit h respe ct t o 200 North De arbor n and Ba ird & Warner, United National argues that since its policy was to act as coinsuranc e, it complied with the terms of the policy by reimbursingHar

tford 50% of

its defense costs. ¶ 35 He re , as s t at ed ab o v e, United National had a duty to defe nd the “non- id en t i fi ed def endants” under the “additional insured” endorse ment. As to 200 North Dea rborn and Ba ird & Warner, the trial court initially order ed United National to reimburse Ha rtford f or 100% of its defe nse costs (later qualified by up to the limit s of the policy ) beca use defe ndants had targ eted t h ei r tender to United National. As addre ssed below, based on the theory of targ eted ten d e r , Un ited National was obligated to provide for all of defe ndants’ defe nse costs, up to the policy

limit s. ¶ 36 United National next contends that the targ eted tender rule in John Burns does not a pply
to the fac ts of this case

. Our s u p re me court held in John Burns that when an insured is

cover ed under more than one insurance policy
, it may tender its defe nse solely to one insurer, and that insurer may not seek equitable contribution from another insurer whose policy is in exis tence but whose cove rag e the insure d has re fused to invoke. John Burns , 189 I ll. 2d at 578. The court further held that even when th er e is an “other insurance ” provision in the policy
, if the other insurance is never trig g ere d, then the apportionment of liability under the “other insurance ” clause does not arise. John Burns
, 189 I ll. 2d at 578

. T h e t ri al court deter mined that sinc e 2 0 0 North Dea rborn and Ba ird & Warner targ eted their defe nse to United National, United N ational had the sole primary obligation to def end and inde mnify them. ¶ 37 Her e, we ag ree with the trial co u rt t h at t h e h olding in John Burns applies to this case. Defen d an ts 200 North Dea rborn and Ba ird & Warner soug ht cover ag e under United National’s “additional insured” endorse ment in 2003 and informed United National that they would not invoke any cover ag e from their insurer, Har tford. Howeve r, when United National initially ref

used to defe nd 200 North Dea rborn and Ba ird & Warner, they turned to Har tford
to provide a defe nse. Subsequent ly
, United National defe nded 200 North Dea rborn and Ba ird & Warner under a rese rvation o f ri gh ts, but only reimburse d Har tford 50% of the defe nse costs since it beli ev ed i t s policy only acte d as coinsuranc e. Howeve r, the holding in John Burns does not support United National’s position. Acc ording to John Burns
, an insured who is cov er ed u n d er more than one policy may choose which insurer would be require d to

-8-defe nd and indemnify it and the insurer may not s eek contribution from another insurer

notwithstanding an “other insurance ” clause in the policy

. There fore
, United National should have provided 100% of the defe nse. Since 200 North Dea rborn and Ba ird & Warner targ eted their defe nse to United National, there was no other “ava ilable” insurance for United National’s policy to as act as coinsuranc e. The trial court’s deter mination, with which we ag ree , is consistent with our supreme c ourt’s holding in John Burns

. ¶ 38 L astly
, United National contends t h at t h e t ri al co u rt err ed in awa rdingdefe ndants prejudg ment interest. Def endants respond that the trial court corr ectly awa rded prejudg ment interest to Har

tford. Howeve r, neither party points t o an y portion of the trial court’s order from August 4, 2009, or J anuar y 27, 2010, indicating the trial court took such action. The first ref ere nce to prejudgment interest appea rs in defe ndants’ brief in its conclusion section. Def endants argued they wer e seeking reimburse m en t from United National, “including prejudg ment interest.” Gene rally
, the decis i o n to awa rd prejudg ment interest is a matter wi t h i n the sound discretion of the trial court and will not be reve rsed absent an abuse of discretion. Marche

schi v. Illinois Farmers Insurance Co.
, 298 I ll. App. 306, 313 (1998). The trial court’s order did deter mine that Har

tford’s damag es wer e in a liquidated sum; howeve r, it never specific ally addre ssed the issue of prejudg ment interest in either of the order s from which the pa

rties appe al. Ther efor e, we will not address the issue on a ppeal. ¶ 39 Acc ording ly , we a ffirm the tria l court’s orde r.

¶ 40 Affir

med.

-9-