FIRST DIVISION	

						nNovember 13. 2001

No. 1-00-2857

KRUSINSKI CONSTRUCTION COMPANY, 		       )		Appeal from the

							       )		Circuit Court of

	Plaintiff and Counterdefendant-Appellee,   )		Cook County

							       )

			v.				       )		

							       )		

NORTHBROOK PROPERTY AND CASUALTY		       )		No. 99 CH 1006

INSURANCE COMPANY,				       )		

							       )		

	Defendant and Counterplaintiff-Appellant   )		

							       )		

(American Country Insurance Company,             )		The Honorable

      							 )  		Dorothy Kinnaird,

	 Defendant and Counterdefendant-Appellee). )		Judge Presiding.

	JUSTICE COUSINS delivered the opinion of the court:

	In November 1994, Krusinski Construction Company (Krusinski) was named

the general contractor for the construction of approximately 300,000 square

feet of office and warehouse space in Buffalo Grove, Illinois, for Courtesy

Corporation (Courtesy).  Krusinski hired eight subcontractors to perform the

construction services.  In 1997, a dispute arose between Krusinski and

Courtesy.  Krusinski filed a demand for arbitration.  Courtesy filed a

counterclaim against Krusinski alleging that the eight subcontractors

performed defective construction services.  Krusinski tendered its defense and

indemnification to its commercial general liability insurer, Northbrook

Property & Casualty Insurance Company (Northbrook), and the subcontractors'

insurers.  Each of the insurers denied coverage.

	Krusinski sought a declaratory judgment finding that the subcontractors'

respective insurers had a duty to defend and indemnify it as to any liability

it may incur in the underlying Courtesy arbitration.

	In a March 13, 2000, order, the trial court held that Northbrook was

responsible for seven of the eight claims against Krusinski and that American Country Insurance Company (American Country) was responsible for one of the eight claims against Krusinski.  Northbrook filed a motion to reconsider on

April 12, 2000.  On July 12, 2000, the trial court allowed Northbrook to file

a second amended complaint instanter.  The trial court denied Northbrook's motion to reconsider and entered judgment in favor of American Country on

counts II and III of the second amended complaint.  Northbrook now presents

the following issue upon appeal:  whether Northbrook has a duty to defend

Krusinski relative to seven of the eight claims brought by Courtesy in the

underlying arbitration.

BACKGROUND

	In November 1994, Krusinski was named the general contractor for the

Courtesy office and warehouse project, to be completed November 15, 1995.  In

order to complete the project, Krusinski secured contracts with eight

subcontractors:  Binzel Industries, Inc. (Binzel); Kole Construction Company,

Inc. (Kole); Sellergren Brothers (Sellergren); Chicago Heights Glass, Inc.

(Chicago Heights Glass); Haley Floor & Wall Design, Inc. (Haley); O'Hare

Engineering, Inc. (O'Hare); Century Concrete Construction Company (Century);

and Lenzini Excavating, Inc. (Lenzini).  Article 13.6 of all of the

subcontracts provided:

	   "THE SUBCONTRACTOR WILL NAME THE CONTRACTOR, OWNER, ARCHITECT AND

ENGINEER AS ADDITIONAL INSUREDS TO THE COMPREHENSIVE GENERAL LIABILITY

AND UMBRELLA POLICIES.  The coverage afforded the Additional Insured

under these policies shall be primary insurance.  If the Additional

Insured has other insurance which is applicable to the loss, such other

insurance shall be on an excess or contingent basis."  

	General contractor Krusinski acquired commercial general liability insurance from Northbrook.  The pertinent sections of Northbrook's policy provide:

	   "a. We [Northbrook] will pay those sums that the Insured [Krusinski]

becomes legally obligated to pay as damages because of bodily injury or

property damage to which this insurance applies.  We will have the right

and duty to defend any suit seeking those damages.  We may at our

discretion investigate any occurrence and settle any claim or suit that

may result.

	* * *

	   b. This insurance applies to any bodily injury and property damage

only if:

	   (1) The bodily injury or property damage is caused by an occurrence

that takes place in the coverage territory; and

	   (2) The bodily injury or property damage occurs during the policy

period.

* * *

	   4. Other Insurance

	   If other valid and collectible insurance is available to the Insured

for a loss we cover under Coverages A and B of this insurance, our

obligations are limited as follows:

	a. PRIMARY INSURANCE

	   This insurance is primary except when paragraph b. below applies.  If

this insurance is primary, our obligations are not affected unless any

of the other insurance is also primary.  Then, we will share with all

that other insurance by method described in c. below.

	b. EXCESS INSURANCE

	   This insurance is excess over any other insurance, whether primary,

excess, contingent or on any other basis;

	   (1) That is property insurance, such as, but not limited to Fire,

Extended Coverage, Builder's Risk or Installation Risk Coverage

applicable to your work;

	***

	   When this insurance is in excess, we will have no duty under

Coverages A or B to defend any claim or suit that any other insurer has

a duty to defend.  When no other insurer defends, we will undertake to

do so, but we will be entitled to the Insured's rights against all those

other insurers."

Northbrook's "other insurance" clause, as amended by endorsement, provides:  

	   "Commercial Liability Conditions is hereby amended to  include the

following:

	   b. EXCESS INSURANCE

	      4. In those instances where the named insured (you) under this

policy is an additional insured on a policy issued by any other insurer,

but only if this policy would have provided such coverage for the named

insured (you)." 

	Subcontractor Lenzini secured an insurance policy with American Country. 

American Country’s "Additional Insured" endorsement provides:

	   "WHO IS AN INSURED (Section II) is amended to include as an insured

any person or organization (called additional insured) whom you are

required to add as an additional insured on this policy by: 

	   1. An agreement, to which you are bound, executed prior to an

'occurrence' giving rise to 'bodily injury' or 'property damage' and; 

	   2. A certificate of insurance designating that person or organization

as an additional insured has been issued by our authorized producer

prior to an 'occurrence' giving rise to 'bodily injury' or 'property

damage.' ***		

	   The insurance provided to the additional insured is limited as

follows:

	   1. That person or organization is an additional insured but only with

respect to your acts or omissions in connection with 'Your work' for

that additional insured by you or on your behalf at the location

designated in the agreement and designated in a certificate of insurance

issued by our authorized producer.

	***

	   2. Additional Exclusions.  This insurance does not apply to:

	   a. 'Bodily injury' or 'property damage' for which the additional

insured(s) are obligated to pay damages by reason of the assumption of

liability in a contract or agreement. *** 

* * *

	   Any coverage provided hereunder shall be excess over any other

insurance, issued in favor of the additional insured whether primary,

excess, contingent or any other basis, whether the additional insured

can collect on it or not, unless a written agreement, to which you are

bound, specifically requires that this insurance be primary or the

certificate of insurance on file with the company showing the person or

organization as an additional insured states the insurance applies on a

primary basis.

	   When this insurance is primary, it shall be contributory in accordance with the method of sharing as set forth in paragraph C of

Condition 4, Other Insurance (Section IV).  When this insurance is

excess, we will pay only our share of the amount of the loss, if any

that exceeds the sum of:

	   (1) The total amount that all such other insurance would pay for the

loss in the absence of this insurance; and

	   (2) The total of all deductible and self-insured amounts under all

that other insurance."	

	A dispute arose between Krusinski and Courtesy regarding alleged

construction deficiencies.  In July 1997, Courtesy filed a demand for arbitration.  Krusinski filed for declaratory judgment to stay Courtesy's demand for arbitration.  Krusinski's motion to stay was granted.  

	In May 1998, Krusinski filed an amended demand for arbitration against

Courtesy and all eight subcontractors.  Courtesy filed a counterclaim against

Krusinski in July 1998.  Courtesy's counterclaim against Krusinski asserted

that Courtesy was not able to occupy the project site until after the

completion date and "many aspects of the Work performed by Krusinski were

defective and/or not in conformance with the Contract."  The alleged defective

or nonconforming work included the following:

	   "1. *** The risers within [the 'monumental staircase'] at various

locations vary beyond the Contract specifications as well as industry

standards.

	   2. The stone floor in the entrance lobby at the Project site has

significant out of level conditions ***.

* * *

	   8. Courtesy suffered significant damages *** when *** Lenzini Excavating, severed a power line ***."

Courtesy requested compensation for the defective and nonconforming work, the

costs to correct the same, and loss of business and profits.

	In August 1998, Krusinski tendered the Courtesy counterclaim to seven of

the eight subcontractors' insurers, excluding Lenzini's insurer, for defense and indemnity.  Each of the insurers denied coverage.

	In January 1999, Krusinski filed a complaint for declaratory judgment

against St. Paul Insurance Company (St. Paul) and all eight subcontractors and

their insurers to defend and indemnify it against the Courtesy claims. 

Krusinski amended its complaint and substituted Northbrook for St. Paul as the

insurer obliged to defend and indemnify Krusinski in Courtesy's underlying

counterclaim for arbitration.

	In April 1999, Northbrook filed its answer, affirmative defenses and

original counterclaim.  In its August 1999 amended counterclaim, Northbrook

asserted that there was no coverage for Krusinski relative to the Courtesy

claims under the Northbrook policies, Northbrook was not obligated to defend

or indemnify Krusinski, and the Northbrook policies were excess policies to

other insurance provided to Krusinski.

	In June 1999, Krusinski filed a motion for summary judgment against

Northbrook and all eight subcontractors and a separate motion against each of

the subcontractors’ insurers.  Northbrook filed a cross-motion for summary

judgment.  Each of the insurers filed for summary judgment.  In several orders

entered in November and December 1999, the trial court granted summary

judgment in favor of the insurers for Binzel, Century, O'Hare, Haley, Kole,

Sellergren, and Chicago Heights.  Relative to Courtesy's claim against

Krusinski, whose insurer is Northbrook, the court found in its orders that the claims made by Courtesy against Krusinski in the Courtesy arbitration were for

"breach of contract" and that the subcontractors' insurers had no obligation

to defend or indemnify Krusinski in the underlying Courtesy arbitration.  In

these orders, the court found:  there was no coverage for Krusinski provided

under policies issued by these seven subcontractors as the claims made by

Courtesy in the underlying arbitration proceedings "do not allege and

'occurrence' or 'property damage.'"

	On December 6, 1999, Krusinski filed a notice of appeal from the summary

judgment orders in favor of the seven insurers.  That appeal was not pursued

and, on April 26, 2000, Krusinski's appeal was dismissed.  

	On December 1, 1999, the trial court granted Krusinski's motion for

partial summary judgment, in part, and denied American Country's cross-motion

finding that Courtesy's underlying amended counterclaim alleged an occurrence

of property damage under the insurance policies of Northbrook and American

Country.  The court reserved its ruling on the issues of the duty to defend

and the primary/excess insurer issue.

	Following the December 1999 order, American Country filed a motion to

apportion defense fees and asserted that it was entitled to an allocation of

defense fees and costs pursuant to the underlying arbitration.  Krusinski

filed its response arguing that American Country's duty to defend all claims

in the underlying counterdemand for arbitration was triggered by the claim

arising out of Lenzini's work.  At a hearing held on American Country's motion

to apportion, the trial judge stated the following:

	   "The facts in this case appear to be unique. *** While, of course,

there is no issue here that American Country's policy is primary in

regard to Linzini's [sic] claim, the hard part of this case, of course, comes about the remaining seven claims. 

* * * 

	   Among the allegations in the underlying counterclaim in the arbitration are that Krusinski didn't adequately supervise and prevent

the misdeeds of the various subs.  That was really what the purpose of the insurance was.  

	   In taking a look at it that way as opposed to just the general

principles of law in a vacuum, I have decided to grant American

Country's motion to apportionment.  I am going to find that American Country is primary and Northbrook is excess for the defense of the

Linzini [sic] claim only, and that American Country is entitled to an

allocation of defense fees and costs upon proof of fees and costs

allocated to covered and noncovered claims."  (Emphasis added.)

On March 13, 2000, the trial court entered the following order:

	   "1. American Country's Motion to Apportion is granted.  The Court

declares that the American Country policy is primary and the Northbrook

policy is excess for the defense of Krusinski for the claim arising out

of Lenzini's work.  This Court finds and declares that American Country

owes a defense to Krusinski only for the claim arising out of Lenzini's

work.  The Court further finds that American Country is entitled to

allocation of defense fees and costs in the underlying arbitration based

on actual proof of fees and costs allocated to covered and non-covered

claims.

	   2. Northbrook's Cross-Motion for Summary Judgment is denied.  The

Court finds that Northbrook must defend the entirety of the remaining

claims against Krusinski.

	   3. The Court further finds that American Country has waived, in open

court and on the record, its reservation of rights pursuant to which it

had offered a defense to Krusinski for the claim arising out of

Lenzini's work.  Therefore, there is no conflict of interest for defense

counsel appointed by American Country to represent Krusinski for the

claim arising out of Lenzini's work.

	   4. There is no just delay enforcement or appeal of this order."

    On April 12, 2000, Northbrook filed a motion to reconsider the judgment

order of March 13, 2000.  Northbrook was granted leave to file its second

amended counterclaim on July 12, 2000, arguing that under the Northbrook

policy, there was no coverage for Krusinski with respect to the Courtesy

claims; Northbrook was not obligated to defend or indemnify Krusinski against

the Courtesy claims; the Northbrook policies are excess to other insurance

provided to Krusinski; American Country should be liable to Krusinski for its

defense costs in the Krusinski arbitration; any coverage provided by

Northbrook's policy is excess to the coverage provided by American Country;

and to the extent Northbrook is forced to pay Krusinski's defense costs,

Northbrook has a right to equitable indemnification and equitable contribution

from American Country.  

	On July 12, 2000, the trial court entered an order which provided:

	   "1. Northbrook is allowed leave to file its second amended counter-

complaint instanter adding Counts II & III against American Country Insurance Co.

	   2. The Court enters judgment on the pleadings in favor of American

Country and against Northbrook on Counts II & III of the Second Amended

Complaint.

	   3. Northbrook's motion to reconsider is denied in all other aspects

and for all other relief sought."

	Northbrook now appeals.  We affirm.

ANALYSIS

	Northbrook contends that it has no duty to defend Krusinski relative to

seven of the eight claims brought by Courtesy.  In contrast, Krusinski asserts

that Northbrook is obligated to defend it against the underlying Courtesy

claims as its primary insurer.  American Country asserts that the March 13,

2000, apportionment ruling should be affirmed and that the July 12, 2000,

judgment in favor of it relative to the second amended countercomplaint should

also be affirmed.

	The review of an order granting summary judgment is de novo.  Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 374, 695 N.E.2d 853 (1998).  The construction of the provisions of an insurance policy is also subject to

de novo review.  American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479-80, 687 N.E.2d 72 (1997).  Apportionment is an equity matter and,

therefore, the standard of review is abuse of discretion.  See Fremont Compensation Insurance Co. v. Ace-Chicago Great Dane Corp., 304 Ill. App. 3d 734, 742, 710 N.E.2d 132 (1999).  In this case, we are reviewing the

construction of insurance policies and the apportionment of insurer liability.

	American Country argues that while Northbrook has standing to appeal the

July 12, 2000, judgment against it and in favor of American Country on the

second amended countercomplaint, it lacks standing to appeal the trial court's

March 13, 2000, apportionment decision.  American Country states that "[t]here was no counter-complaint pending between Northbrook and American Country on

March 13, 2000, when the trial court entered the judgment on apportionment."  Although the general rule in Illinois is that the only party who may appeal

from a judgment in favor of a codefendant is the plaintiff, that rule is

subject to the limitation that it applies only in cases where the rights of

the appellant are not affected by the error.  St. Mary of Nazareth Hospital v. Kuczaj, 174 Ill. App. 3d 268, 271, 528 N.E.2d 290 (1988).  Northbrook's responsibilities as an insurer were directly adverse to those of American

Country in the March 13, 2000, order on apportionment and the July 12, 2000,

denial of Northbrook's motion to reconsider.  Therefore, Northbrook has

standing to appeal.

	In construing the language of an insurance policy, the court's primary

objective is to ascertain and give effect to the intent of the parties to the

contract.  Koloms, 177 Ill. 2d at 479.  A court must construe the policy as a whole and take into account the type of insurance purchased, the nature of the

risks involved, and the overall purpose of the contract.  Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391, 620 N.E.2d 1073 (1993).  If the terms of the policy are clear and unambiguous, they must

be given their plain and ordinary meaning.  Koloms, 177 Ill. 2d at 479.  Provisions that limit or exclude coverage will be interpreted liberally in

favor of the insured.  Koloms, 177 Ill. 2d at 479.

	The extent of an insurer's duty to defend is determined by a comparison

of the allegations in the underlying complaint to the relevant provisions of

the insurance policy.  Koloms, 177 Ill. 2d at 479.  If the facts alleged in the complaint fall within, or potentially fall within, the language of the

policy, the insurer's duty to defend arises.  Koloms, 177 Ill. 2d at 479.   

	Illinois law is clear that primary and excess insurers insure different

risks.  Schal Bovis, Inc. v. Casualty Insurance Co., 315 Ill. App. 3d 353, 732 N.E.2d 1179 (2000).  Primary insurance is coverage whereby liability attaches

immediately upon the happening of the occurrence that gives rise to liability. 

Northbrook Property & Casualty Insurance Co. v. United States Fidelity & Guaranty Co., 150 Ill. App. 3d 479, 483, 501 N.E.2d 817 (1986).  Primary policies generally impose on the insurer a duty of defense separate from the

duty to indemnify the insured against the claim.  Zurich Insurance Co. v. Raymark Industries, Inc., 145 Ill. App. 3d 175, 201, 494 N.E.2d 634 (1986).  Excess or secondary coverage liability attaches only after a predetermined

amount of primary coverage has been exhaustive.  Northbrook Property, 150 Ill. App. 3d at 483.  Rather than providing a duty to defend, most excess policies

require the excess insurer to indemnify the insured for the costs of the

defense as part of the "ultimate net loss" against which the policy insures.  Zurich, 145 Ill. App. 3d at 201.

	Northbrook cites Schal Bovis to support its contention that the subcontracts at issue in the instant case "are the very types of written

agreements contemplated by American Country's 'Additional Insured' endorsement

and, in fact, specifically require that the insurance provided by American

Country be primary."  In Schal Bovis, the underlying litigation involved a worker's fall from a steel beam while working on a construction project. 

MKDG/Buck 123 Partnership (Buck) owned the site, and Schal Bovis, Inc. (Schal

Bovis), was the general contractor.  Both were insured by Northbrook Property

& Casualty Company (Northbrook).  Schal Bovis, 315 Ill. App. 3d at 358.  Schal Bovis contracted with four subcontractors, Ozark Steel Fabricators, Inc., and

Ozark Steel Sales, Inc. (collectively, Ozark), Ranken Steel, Inc., and R.S.

Erectors, Inc. (collectively, Ranken), Alcan United Concrete, Inc. (Alcan),

and Chicago Forming, Inc. (Chicago Forming), to complete the project.  Buck and Schal Bovis were additional insureds on each of the subcontractors'

insurance policies issued by Great American Insurance Company (Great

American), Wausau Insurance Company (Wausau), Casualty Insurance Company

(Casualty), and American States Insurance Company (American States).  

	The Northbrook policy in Schal Bovis contained an "other insurance" clause that stated that the coverage provided would be considered excess

insurance, but only in the case where:  (1) the other insurance was property

insurance; (2) the other insurance was for fire, explosion aircraft or vehicle

insurance for premises rented to Schal; or (3) loss arose out of the

maintenance or use of aircraft, autos or watercraft.  Schal Bovis, 315 Ill. App. 3d at 361.  However, Northbrook issued an endorsement to the policy that

provided that the "other insurance" clause was amended to make the policy an

excess policy "[i]n those instances where an Insured under [the] policy is an

Additional Insured on a policy issued by any other insurer."  Schal Bovis, 315 Ill. App. 3d at 361.  Northbrook also executed a "Blanket Person Insured by

Contract" endorsement providing that the "Persons Insured" provision would be

amended to include any person or organization that the "Named Insured has

agreed by contract, either oral or written, prior to loss, to include as an

insured with respect to operations performed by, for, or on behalf of the

Named Insured."  Schal Bovis, 315 Ill. App. 3d at 361.

	Schal Bovis and Buck tendered their defenses to Wausau, Great American, Casualty and American States.  Schal Bovis, 315 Ill. App. 3d at 360.  Wausau and Great American accepted the tender.  Casualty participated in Schal Bovis'

and Buck's defense, but withdrew when its named insured, Alcan, was dismissed

from the suit.  American States never participated in Schal Bovis' or Buck's

defense.  The jury returned a verdict in favor of the injured employee and assess his recoverable damages in the amount of $2,892,500 against Schal

Bovis, Buck and Ozark.  Schal Bovis, 315 Ill. App. 3d at 360.  The jury was not asked to apportion fault.  Schal Bovis, 315 Ill. App. 3d at 360.  

	Northbrook brought alternative claims:  (1) in its count seeking

reimbursement from Casualty and American States, Northbrook asserted that it

was an excess insurer of Schal Bovis and Buck; and (2) in its count seeking

equitable contribution, it asserted that it insured the "same risk" as the

other insurers who were alleged to be primary carriers.  Schal Bovis, 315 Ill. App. 3d at 360.

	The appellate court wrote:

	"It is undisputed that Schal and Buck are insureds under the Northbrook policy, and it is also undisputed that Schal and Buck are additional

insureds on each of the policies issued by Great American, Casualty,

Wausau and American States.  Therefore, by operation of the 'other

insurance' endorsement, we find Northbrook to be an excess insurer

relative to the other insurers in this case."  Schal Bovis, 315 Ill. App. 3d at 362.  

The appellate court reasoned that the endorsement which amended the "other

insurance" clause was "clear and unambiguous and indicate[d] that Northbrook

was intended to be an excess insurer whenever its insureds (Schal and Buck)

were named as additional insureds on any policy issued by another carrier." 

Schal Bovis, 315 Ill. App. 3d at 361-62.  However, Schal Bovis is inapposite because the underlying litigation in that case involved a single personal

injury claim.

	Northbrook also relies on Missouri Pacific R.R. Co. v. International Insurance Co., 288 Ill. App. 3d 69, 679 N.E.2d 801 (1997).  In Missouri Pacific, there was an insurance coverage dispute between Missouri Pacific Railroad Company and four of its excess general liability insurance carriers:

Commercial Union Insurance Company, Federal Insurance Company, International

Insurance Company, and Century Indemnity Company.  Missouri Pacific, 288 Ill. App. 3d at 71.  Thousands of current and former Missouri Pacific employees

brought claims against Missouri Pacific seeking damages for hearing loss

allegedly caused by continuous and repeated on-the-job exposure to unsafe

noise levels.  Also, hundreds of current and former employees sought damages

for asbestos-related injuries allegedly caused by continuous and repeated

exposure to unsafe levels of asbestos over the course of their employment. 

The trial court found as a matter of law that all of the hearing loss claims

arose from a single occurrence.  Missouri Pacific, 288 Ill. App. 3d at 74.  Also, the trial court held that all of the asbestos claims arose from a single

occurrence.  Missouri Pacific, 288 Ill. App. 3d at 74.  Importantly, unlike the instant case, Missouri Pacific involved "a single continuous occurrence." Missouri Pacific, 288 Ill. App. 3d at 78. 

	Another case that Northbrook cites is Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 355 N.E.2d 24 (1976).  In Maryland Casualty, James Mims filed a personal injury action because he had been shot by Robert Peppers while he

was fleeing the pizza parlor owned by Peppers.  There was no policy of

insurance on the pizza parlor covering liability for personal injuries. 

Adjacent to the pizza parlor was a building which was insured by Maryland

Casualty Company (Maryland Casualty) under a general liability policy.  Next

to that building was the Peppers' home, which was insured by St. Paul Fire &

Marine Insurance Company (St. Paul) under a homeowner's policy of insurance. 

Maryland Casualty, 64 Ill. 2d at 191.  The policies issued by Maryland and by St. Paul both specifically excluded coverage for injuries intentionally

inflicted.  Maryland Casualty, 64 Ill. 2d at 190.  The policy issued by Maryland Casualty was limited by its terms to pay on behalf of Peppers and his

wife all sums which they became legally obligated to pay for bodily injury or

property damage caused by an occurrence and arising out of the ownership,

maintenance, or the use of the insured premises.  Maryland Casualty, 64 Ill. 2d at 192-93.

	The trial court held that the Maryland Casualty policy issued to Peppers

did not cover the occurrence in question.  Maryland Casualty, 64 Ill. 2d at 193.  However, the trial court held that St. Paul was obligated under its

policy to defend Peppers.  Maryland Casualty, 64 Ill. 2d at 193.  The appellate court modified and affirmed.  The Illinois Supreme Court agreed. 

Maryland Casualty, 64 Ill. 2d at 199.  The supreme court reasoned that the controlling question as to Maryland's coverage and duty to defend involved the

location of the occurrence.  Maryland Casualty, 64 Ill. 2d at 192.

	The supreme court wrote:

	   "In determining whether the insurer owes a duty to the insured to

defend an action brought against him, it is the general rule that the

allegations of the complaint determine the duty.  If the complaint

alleges facts within the coverage of the policy or potentially within

the coverage of the policy the duty to defend has been established.

[Citations.]  

	   This duty to defend extends to cases where the complaint alleges

several causes of action or theories of recovery against an insured, one

of which is within the coverage of a policy while the others may not

be."  Maryland Casualty, 64 Ill. 2d at 193-94.

However, Maryland Casualty is also inapposite because, unlike the instant case, that case involved a single occurrence by a single actor.  Here, we have

acts of alleged nonconformance by seven different subcontractors that are

unrelated to each other and unrelated to the previously resolved Lenzini

action. 

	In the instant case, Krusinski had a responsibility for the work performed by its subcontractors.  Northbrook's policy insuring Krusinski is a comprehensive general liability policy.  Northbrook's policy states that it "will pay those sums that the Insured [Krusinski] becomes legally obligated to

pay as damages because of bodily injury or property damage to which this

insurance applies."  This insurance applies to any bodily injury and property

damage if:  "(1) The bodily injury or property damage is caused by an

occurrence that takes place in the coverage territory; and (2) The bodily

injury or property damage occurs during the policy period."  The pertinent amendment to the Northbrook policy states that where the named insured,

Krusinski, is an additional insured on a policy by another company, the

Northbrook policy is excess insurance, but only if Northbrook would have

provided coverage for the claim. 

	In contradistinction to the other claims, the Lenzini claim involved property damage for which Lenzini's insurer, America Country, became the

primary insurer and Northbrook became the excess insurer.  Courtesy's remaining claims against Krusinski were for "breach of contract" by seven

different companies.  Where the facts alleged in the complaint fall within, or potentially fall within, the language of the policy, the insurer's duty to

defend arises.  Koloms, 177 Ill. 2d at 479.  In our view, Krusinski, as general contractor, is potentially responsible for defective work performed by all subcontractors.  However, the facts alleged in the complaint, except for

one property damage occurrence, do not fall within or potentially fall within

Lenzini's policy with American Country.  Provisions that limit or exclude

coverage will be interpreted liberally in favor of the insured (Koloms, 177 Ill. 2d at 479), and, therefore, on the facts of the instant case, we hold that the trial court did not err in finding that Northbrook had a duty to

defend Krusinski in the remaining Courtesy claims.  

	Relative to the duty to defend claims in an underlying action that are

not potentially covered by an insured's policy, Buss v. Superior Court, 16 Cal. 4th 35, 939 P.2d 766, 65 Cal. Rptr. 2d 366 (1997), is instructive.  In

Buss, H&H Sports, Incorporated (H&H Sports), brought an action against Jerry H. Buss and others alleging 27 causes of action including breach of contract,

defamation, specific performance, and conversion.  Buss, 16 Cal. 4th at 40-41, 939 P.2d at 769, 65 Cal. Rptr. 2d at 369.  Buss tendered the H&H Sports action to his insurers.  With the exception of Transamerica Insurance Company

(Transamerica), each refused, denying coverage.  Buss, 16 Cal. 4th at 41, 939 P.2d at 769, 65 Cal. Rptr. 2d at 369.

	Out of the 27 causes of action in the final amended form of the

complaint, there was a single one for defamation against Buss.  Buss, 16 Cal. 4th at 42, 939 P.2d at 770, 65 Cal. Rptr. 2d at 370.  In light of the allegations, Transamerica agreed to defend Buss in only the defamation cause

of action.  Buss, 16 Cal. 4th at 42, 939 P.2d at 770, 65 Cal. Rptr. 2d at 370.  Buss and Transamerica entered into an agreement that provided that if a court

ordered defense costs to be shared pro rata by Buss and Transamerica, Buss shall reimburse Transamerica for the appropriate pro rata share of the fees and costs paid to that date.  Buss, 16 Cal. 4th at 42, 939 P.2d at 770, 65 Cal. Rptr. 2d at 370.  Subsequently, Buss settled the H&H Sports action paying H&H Sports $8.5 million.  Buss, 16 Cal. 4th at 42, 939 P. 2d at 770, 65 Cal. Rptr. 2d at 370.  Transamerica paid Buss' independent counsel a sum equaling the cost of defending the defamation cause of action.  

	In Buss, the court wrote, in pertinent part:

	   "It follows that, in a 'mixed' action, in which some of the claims are at least potentially covered and the others are not, the insurer has a duty to defend as to the claims that are at least potentially covered, having been paid premiums by the insured therefor, but does not have a duty to defend as to those that are not, having not been paid therefor."  (Emphasis added.)  Buss, 16 Cal. 4th at 47-48, 939 P.2d at 774, 65 Cal. Rptr. 2d at 374. 

	In Buss, the court held that the insurer may seek reimbursement for the defense costs that can be allocated solely to claims that are not even

potentially covered.  Buss, 16 Cal. 4th at 50, 939 P.2d at 776, 65 Cal. Rptr. 2d at 376.

	Finally, Northbrook asserts that if it is determined to have a duty to

defend Krusinski, it is entitled to reimbursement from American Country.  We

disagree.  Northbrook has not yet paid the expenses for Krusinski's defense,

and based upon our holding, Northbrook will not become entitled to

reimbursement from American Country. 						

	For the foregoing reasons, the judgment of the trial court is affirmed.

	Affirmed.

	McNLYLULTY, J., and COHEN, P.J., concur.