## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Pekin Insu rance Co. v. Tov ar Sn ow Professionals, In c. , 2012 IL App (1st) 111136

Appellate Court Caption PEKI N I NSURANCE COMPANY, Plaintiff-Ap p ell ant, v. TOVAR SNOW PROFESSI ONAL S, I NC., and ANN HOL L AND, DefendantsAppellee s.

District & N o. First District, Second D ivision Docke t No. 1-11-1136

Filed May 8, 2012

Held ( Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of 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 seeking a decla ratory judgme nt tha

t pla intiff insurer ha d no duty to defe nd defe ndant snow remova l company in the underly ing action alleg ing injurie s suffer ed by a per son who slipped and fe ll as a re sult of defe ndant’s snow remova l activities, summary judgme nt was proper ly
enter ed for the snow remova l company , notwithstanding the insurer’ s contentions that the commerc ial g ener al liability policy it issued to a

concr ete company , which then subcontrac ted with t h e snow remova l

co mpany , restric ted additional cover ag e endorse ments to construction
contra cts by the use of the word “c o n s truction” in the endorse ment heading
, since ambig uities in insurance policies are resolved in favor of the insured, I llinois law clea rly provides that a heading o r ca p t ion of a policy does not modify cover ag e provided by the actua l policy lang uag e, and in the instant case , the fac ts of th e fa l l we re within the cover ag e provided by the actua l text of the policy
, despite the lang uag e in the heading

.

Dec ision Under Review Appea l from the Cir cuit Court of Cook County
, No. 10-CH-16348; the Hon. Peter A . Fly

nn, J udg e, pre siding.J udg ment Affir med.

Counsel on Appea l Pretzel & Stouffer, Chtrd., of Chicag o (Robert Marc Chemers and Peter G. Sy reg elas, of c ounsel), for

appellant.

Hunt L aw Group, L L C, of Chicag o (B rian J

. Hunt and J ake A. Cilek, of counsel), f

or appe llees.

Panel PRES I DI NG J USTI CE QUI

NN delivere d the judgme nt of the court, with opinion.
J ustices Cunningha m and Har ris concur red in the judgme nt and opinion.

OP INION

¶ 1 Pekin I nsuranc e Company (Pekin), a commerc ial g ener al liability insurer, brough t an action ag ainst Tovar Snow Professionals, I nc. (Tovar ), and Ann Hollan d for a decla ratory judgme nt that Pekin did not owe Tovar a duty to defe nd in the underly ing lawsuit broug ht by Ann Holland for alleg ed persona l injuries due to Tovar’ s neg lige nt snow remova l activities. The circ uit court enter ed summary judgme nt in favor of Tovar and ag ainst Pekin. Pekin appea ls the judgme nt.

¶ 2 Ba ckg round ¶ 3 This case orig inated via a slip and fall neg lige nce lawsuit filed in the circ uit court by Ann Holland ag ainst Tovar and Dunleavy Concrete
, I nc. (Dunlea vy ), arising out of their snow and ice remova l activities wher e Holland fell. Tovar tender ed the defe nse of the Holland lawsuit
to Pekin pursuant to the terms of Tovar’ s subcontrac t wit h Dunleavy

. Pekin had issued a

commerc ial g ener al liability insurance policy

to the s ubcontra ctor Dunleavy for the pe riod in quest i o n wh i ch cover ed Tovar via a blanket automatic additional insured endorse ment applicable to any written contra ct Dunleavy enter ed into requiring such cover ag e. Pekin denied c overa g e and soug ht a dec lara tory judgme nt absolving it fr om any responsibility

. ¶ 4 Pekin and Tovar filed cross-motions for summary judgme nt reg arding Tovar’ s claim that it is cover ed under the Pekin insurance policy issued to Dunleavy

. Pekin arg ued that the insurance policy it issued to Dunleavy restric ted additional cove rag e endor sements only to construction contra cts and did not include activities rela ted to snow and ice remova l beca use the word “construc tion” appea red as a limit ing adjec tive in the endorse ment heading in the insurance contra ct. ¶ 5 The trial court ruled that pursuant to applicable I llinois law, an isolated, undefine d word in a title or heading cannot opera te to modify or restric t insurance cover ag e that is otherwise

-2-expressly convey ed in the text of an insurance policy

. The trial court ruled that beca use the
text of the insurance policy issued by Pekin plainly and clea rly aff orded cover ag e to Tovar, it g rante d summary judgme nt in favor of Tovar and ag ainst Pekin. For the rea sons stated here in, this court affir

ms the circuit cour

t ruling.

¶ 6 Standard of Re view ¶ 7 The applicable standard of revie w for a ruling on a motion for summary judgme nt is de

novo

. Home I

nsurance Co.v. Cincinnati InsuranceCo.
, 213 I ll. 2d 307, 315 (2004).

¶ 8 Analy sis ¶ 9 Summary judgme nt is appropr iate when there are no g enuine issues of materia l fac t and when the moving party is entitled to judgme nt as a matter o f l aw. Kajima Construction Servic es, Inc . v. St. Paul Fire & Marine Insurance Co.
, 227 I ll. 2d 102, 106 (2007). I n this insurance cover ag e dispute, the parties ag ree that there are no materia l fac tual disputes. The sole dispute conce rns whether or not the construction of the insurance policy aff ords Tovar the ability to tender its def

ense of the under ly ing Holland neg lige nce la wsuit to P ekin. ¶ 10 To v ar , re ly ing on the fac t that it was an additional insured under the insurance policy Pekin issued to Dunleavy , tender ed its defe nse of the H olland suit to P ekin. ¶ 11 The contra ct lang uag e Pekin relied upon in de ny ing cover ag e to T ovar as an additional insured is as follows:

“ 1. Addition al Insu red–When Required By Writte n Construction Contrac t F or Ongoin g Operations P erform ed By You F or An Addition al Insu red and/ or Your Com pleted Operations
A. Wit h respe ct to cover ag e aff orded under this section of the endorse ment, Section II–Who is An Insu red is amende d to include as an insured any person or org anization for whom y ou are perf

orming opera tions, when y ou and such person or org anization have
ag ree d in a written contra ct eff ective during the policy period stated on the Dec lara tions Pag e (her einaf

ter ref err ed to as the ‘P olicy Period’) and executed prior to the ‘bodily injury ’ or ‘prope rty damag e’ for which cover ag e is soug ht, that y ou must add that person

or org anization as an additional insured o n a p olicy of liability insurance (her einaf ter ref err ed to as the ‘ Additional I nsured’ ). The Additional I nsured is cover ed only with respe ct to vicar ious liability for ‘bodily injury ’ or ‘prope rty damag e’ imputed from You to the Additional I nsured as a proxi mate result of: (1) Your ong oing opera tions perf ormed for that Ad d i t i o n al I nsured during the Policy Period; or (2) ‘Your work’ perf

ormed for the Additional I nsured during the Policy Period, but only for ‘bodily injury ’ or ‘prope rty damag e’ within the ‘produc ts–completed
opera tions hazard.’ ” ¶ 12 There are no contested issues arising from the lang uag e contained in section A other than whether the text rea lly meant to include all written contra cts. There are no contested issues

-3-reg arding whether the ag ree ment was enter ed into during the policy period or whether or not

it wa s executed prior to the damag es for which cover ag e is soug ht or whether there exis ted

a require ment that Tovar be added as an additional insured. The only issue is whether the text of section A, which includes all written contra cts, define s “Who is An I nsured,” or whether the hea ding/title/caption lang uag e of “ Writt en Construction Contract” limit s the definition of “Who is An I nsured.” ¶ 13 Pekin arg ues that the insurance policy cover ed only “construc tion” activities and that the alleg ations of the underly ing neg lige nce a ction involving Holland a re c oncer ned only with

snow and ice remova l

. Beca use snow and ice remova l are not construction activities stemming from a construction contra ct, Pekin denied cover ag e and soug ht decla ratory relief

. Howeve r, as one can rea dily see from the quoted text above, the term “construc tion” appea rs only in the t i t l e or caption of the endorse ment. The specific wording in the text of the endorse ment contains no such limit ation on the ty pe of contra ct cover ed other than that they be written contra cts. Pekin never define d the term “construc tion” and the term “con s tr u c ti on”

was used only

in the heading and was omitted f rom the text of the provision tha t f ollowed. The only limit ing word in the text for any contra cts cover ed by Pekin was the term “wr itten.” This policy lang uag e is similar to that interpre ted by our supreme court’s decision in Barth

v. State Farm Fire & Casualty Co.
, 228 I ll. 2d 163, 174-75 (2008) (citing 2 Mark S. Rhodes, Couch Cy clopedia of I nsuranc e L aw § 15:57, at 302 (2d rev. ed. 1984)) , which held that a contra ct term only used in a headi n g and not in the text and otherwise not define d cannot proper ly be imposed on an insured to exclude cover ag e. The policy lang uag e is also simil ar to that interpre ted in Nudi Auto RV & Boat Sales, Inc. v. John Dee re Insurance Co.
, 328 I ll. App. 3d 523, 532 (2002), wher e this court held that even though the title of a section of the insurance contra ct rea d “ ‘F alse Pretense Coverag e,’ ” the re l ev an t t ex t of the provision contained no mention of any intent to defr aud and the t ext of t he provision stated t h at any auto ac quired by

the dea ler wa s a cove red a uto under the “ false pr etense cover ag e.” ¶ 14 Pekin cites two statutory construction case s for the proposi t i o n t h at , i n construing a statute, one should interpre t any specific provision within the context of the entire s t at ute including the st atute heading s under which the specific provisions appea r. Daniels v. Corrigan
, 382 I ll. App. 3d 66, 73 (2008); Illinois Be ll Telephone Co. v

. Illinois Comme rce Comm’n
, 362 I ll. App. 3d 652, 659 (2005) (citing P eo p l e v. W arren , 173 I ll. 2d 348, 357 (1996))

. Howeve r, we are not dealing with statutory construction but the terms of an insurance policy

. Fur

ther, the Illinois Bell court acknow ledg ed that even in the context of statutory construction, “ca se law war ns ag ainst putting undue emphasis on org aniz at i onal device s. Hea dings cannot limit the plain meaning of the text ***.” (I nterna l quotation marks omitted.) Illinois Bell Telephone Co. v. Illinois Commerce Comm’n
, 362 I ll. App. 3d at 661. The law is clea

r in I llinois that a heading or caption or title to a section of an insurance policy does not modify the cover ag e provided by the actua l text ual lang uag e appea ring in the policy

. Barth v. State Farm Fire & Casualty Co.
, 228 I ll. 2d at 174-75; Nudi Auto RV & Boat Sales, Inc. v. John Dee re Insurance Co.
, 328 I ll. App. 3d at 532. Even in statutory construction, the Illinois Be ll court held that “[a]s a rule[,] the words of the heading [ ] be ing more g ener al[ ] will not control the more specific words of the act.” (I nterna l quotatio n m ar ks omitted.) Illinois Bell Telephone Co. v. Illinois Commerce Comm’n
, 362 I ll. App. 3d at 662. The actua l

-4-text of the Pekin insurance policy endorse ment af fo rd s co vera g e to “a written contra ct eff ective during the policy period.” The word “contr act” is not limit ed only to construction
contra cts, but require s only a “w ritten contra ct.” ¶ 15 An insurer’ s duty to defe nd its insured is quite broad. Guillen v. Potomac Insurance Co. of Illinois
, 203 I ll. 2d 141, 150 (2003) (citing Outboard Marine C o r p

. v. Liberty Mutual Insurance Co.
, 154 I ll. 2d 90, 108 (1992))

. I n order to deter mine whether the insurer’ s duty to de fend has arisen, the court must compar e the alleg ations of the underly ing complaint to the policy lang uag e and must construe the se items liberally

. Pek in Insurance Co. v. XData Solutions, Inc
., 2011 I L App (1st) 102769, ¶ 7 (citing United States Fidelity & Guaranty Co.

v. W ilkin Ins u l a tion Co.
, 144 I ll. 2d 64, 73 (1991))

. The law in I llinois has long been that ambig uities and doubts in insurance policies are resolved in favor of the insured, espec ially those that appe ar to exclude cover ag e

. Dora Townshi p v. Indiana Insurance Co. , 78 I ll. 2d 376, 379 (1980); United States Fidelity & Guaranty Co. v

. Specialty Coatings Co.
, 180 I ll. App. 3d 378, 384 (1989). I n this case, P ek in does not arg ue that the rule of construction applicable to insurance contra cts which direc ts this court to construe ambig uities in favor of the insured should not apply

. ¶ 16 Pekin attempts to distinguish this case from esta blished case prec edent by arg uing tha t the bold lang uag e that is prec eded by numera l “1.,” wh i ch rea ds “ Addition al Insu red–When Required By Writte n Construction Contrac t for Ongoing Operat ions P erform ed By You For An Addi tional In sured and /or Your Com pleted Operations,” is not rea lly a heading or ti t l e or caption, but rea lly is part of the text of this section

. This
arg ument falls flat. The above- quoted section has all the hallmarks of a caption/hea ding/title

as one would normally use such a device

. I t appea rs at the beg inning. The lettering is in bold ty pefa ce. I t utiliz es an explanatory phrase rathe r than a sentenc e structure

. Eac h word in the phrase beg ins with a capital letter. That is not to say that nonbolded, noncapitalized phrase s

o r s en t en ces cannot serve as heading s or captions or titles, too. Howeve r, in this case , t h e arg ument m u s t be reje cted wher e we are asked by Pekin to rea d this section as if the abovequote d wor d s ar e to prec ede eac h subsection as text rathe r than as a caption/hea ding/title. There are no indications any wher e in the policy or in the above- quoted section indicating that it is meant to be the beg inning phrase or element of eac h sub-sec tion that follows it. I n fac t, the many sty listi c conventions for a heading /titl e/ca ption are utiliz ed
to indicate it is not text and to flag it as a heading /titl e/ca ption of this section, including that it appea rs as the introductory statement. Additionally
, when attempting to actua lly rea d the ab o v eq u oted words as the first part of eac h subsection that follows, we are left wit h an ung rammatica l, poorly punctuated jumble of sentenc es that would be t h e an t i t hesis of a clea rly written policy

of insuranc e cove rag e. ¶ 17 I t is clea

r from the underly

ing complaint, the actua l text of the insurance policy lang uag e and the purpose for which the insurance policy was written for Dunleavy that the fac ts of the

acc ident broug ht the Holland lawsu i t within the insurance policy cover ag e despite the lang uag e in the heading of the endorsement s ection which Pekin arg ues l imited the text to construction contr acts only

.

-5-¶ 18 Conclusion

¶ 19 For the fore g oing rea sons, the g ener al liability insurer in this case , Pekin I nsuranc e Co., has a duty to defe nd Tovar Snow Professionals, I nc., as an additional insu re d fo r a claim arising out of a lawsuit broug ht by Ann Holland, who fell at the site following Tovar’ s snow

remova l work. The circ uit court did not err in finding Pekin had a duty to defe nd Tovar in the under ly ing tor

t lawsuit.

¶ 20 Affir

med.

-6-