## 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

Owners Ins uran ce Co. v . Seam less Gutter Corp. , 2011 IL App (1st) 082924- B

Appellate Court Caption OWNERS I NSURANCE COMPANY and AUTO- OWNERS I NSURANCE COMPANY, Plaintiffs-Appellants, v. SEAML ESS GUTTER CORP OR ATI ON, an I llinois Corporation, D.R. HORTON, I NC., an I llinois Corporation, Do i n g Business as Cambridg e Homes, ERI C GULBRAND SEN and AMY GULBRAND SEN, Def endants (Westfield Homes of I llinois
, I nc., a Dissolved I llinois Corporation, and DRH Cambridg e Homes, I nc., an I llinois Corporation, Doing Business as Cambridg e Homes, D efe ndants-Appe llees).

District & N o. First District, F irst Division Docke t No. 1-08-2924

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed September 6, 2011

November

3, 2011 November

14, 2011

Held ( Note : Thi s syl lab us

con st i tut es no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo 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 plaintiff insurers’ action seeking a decla ratory judgme nt that they wer e not obligated to provide cover ag e for defe ndant g ener al contra ctor and its

succe ssor under the compre hensive g ener al liability policy and the

u mbrella policy issued to defe ndant subcontrac tor naming the gen er al
contra ctor as an additional insured in an underly ing action for the injuries

s u ff er ed by an employ ee of the g ener al contra ctor, the order g ranti n g summary ju d gm ent for defe ndants and deny ing plaintiffs’ motion for
summary judgme nt was reve rsed and summary judgme nt was enter ed for plaintiffs, since the construction co n tr a c t d id n o t r e q uire the subcontrac tor to provide umbrella cove ra ge, the employ ee exclusion in the
compre hensive g ener al liabili ty p o li c y a p p li e d to exclude cover ag e for the injured plaintiff in the unde rly ing a ction, the estoppel doc trine did notapply wher e plaintiffs did not brea ch a duty to defe nd, and plaintiffs did not waive any

cover ag e def

enses not set forth in their letters deny ing c overa g e.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 07-CH-01603; the Hon. Martin S. Ag ran, Judge , presiding

.

J udg ment Reverse d.

Counsel on Appea l Robert Marc Chemers, David S. Osborne, and Sara J

. Br undag e, all of Pretzel & Stouffe r, Chtrd., of Chicag o, for a ppellants.

J ohn D. Hac kett, Be njamin B. Be lcher
, and J ulie A. Teusche r, all o f Cassidy Schade L L P, of Chicag o, for a

ppellees.

Panel PRES I DING J USTI CE HALL delivere d the judgme nt of the court, with opinion.
J ustices L ampkin and Rochford concur red in the judgme nt and opinion.

OP INION

¶ 1 T h e p l ai ntiffs, Owner s I nsuranc e Company (Owne rs) and Auto -O wn er s I n s u ra n ce Company (Auto-Ow ners)
, filed a complaint for decla ratory judgme nt ag ainst Seamless Gutter Corporation (Seamless), Westfield Homes of I llinoi s, I nc. (Westfield), DRH Cambridg e Homes, I nc. (Cambridg e), D.R. Horton, I nc. , an d E ri c and Amy Gulbrandse n, seeking a decla

ration that defe ndants Westfield and Cambridg e wer e not entitled to cover ag e under the policies of insurance issued to Seamless by the plaintiffs. The circ uit court denied the plaintiffs’ motion for summary judgme nt and enter ed summary judgme nt in favor of the defe ndants. The plaintiffs a ppeale d. 1 ¶ 2 On Novembe r 15, 2010, this court ente red a n order pursuant to I llinois Supreme Court Rule 23 (ef

f. J an. 13, 2011) aff

irming in part and reve rs i n g i n p art the g rant of summary judgme nt to the defe ndants finding that there wer e g enuine issues of materia l f act. Owners Insurance Co. v. Seamless Gutter Corp., No. 1-08-2924 (2010) (unpublished order under Supreme Court Rule 23). The plaintiffs filed a pe tition for leave to a ppeal.

Sea m le ss, D.H. Hor ton , I nc., and th e Gul bra nds ens ar e no t p ar ti es to thi s a ppe al

. 1

-2-¶ 3 On Marc h 30, 2011, our supre me court de nied leave to a ppeal but issued a super visory order direc ting this court to va cate our order and rec onsider our determination that Owner s owed a duty to Cambridg e, in light of Pek in Insurance Co. v. W ilson
, 237 I ll. 2d 446 (2010). Owners Insurance Co. v. Seamless Gut t er Corp., No. 111754 (I ll. Mar. 30, 2011) (table)

. I n acc ordanc e with the supervisory order
, we vaca te our judgme nt in Owners Insurance Co.
, and upon rec onsideration, we now determine that the insurers did not have a duty to defe nd Cambridg e. ¶ 4 As our prior judgme nt w as vacated, we revisited the issue of whether the plaintiffs had

a duty to defe nd Westfield. See Flavell v. Ripley
, 247 I ll. App. 3d 842, 847 (1993) (“[w]here

a judgme nt order is vacated, the eff ect is to leave the pleading s as if no judgme nt wer e ever entered”) ; but see People v. Coulter
, 345 I ll. App. 3d 81 (2003) (whe re supreme co u rt

vacated appellate court’s prior opinion and rema nded for rec onsideration in light of a rec ent decision of the court, the appellate court would not consider portions of that decision not rela ted to the ca se bef

ore the appellate court). ¶ 5 We no w d et er m i n e t h at W est field was not an insured under either of the plaintiffs’ policies, and ther efor e, they had no duty

to defe nd Westfield. The pertinent fac ts are ta ken from the plea dings a nd are set forth be low.

¶ 6 I . BA CKGROUND ¶ 7 A. The Construction Contrac t ¶ 8 Westfield was the g ener al contra ctor and Seamless was a subcontrac tor on a construc tion projec t site in Alg onquin, I llinois (the Alg onquin site). The contra ct betwee n Seamless and Westfield contained the f ollowing pr ovisions relating to insurance : “Subcontract o r shall *** pay for and maintain insurance for all cover ag es and
amounts of co v er ag e not less than t hose set forth below *** and shall provide directly from S ubcontra ctor’s i nsuranc e carrie r t o Contractor at Contractor’ s office certificates issued by insurance companies satisfac tory to Contractor to evidenc e such cover ag e ***. *** I n the event of any failure by Subcontrac tor to comply with the provisions of this Parag raph 27.1. Contractor may *** purcha se such insur an c e at Sub c o n tr a c tor ’s expense, provided that Contractor shall have no obligation to do so and if Contractor shall do so, Subcontrac tor shall not be relieve d of or excused from t h e o b l iga tion to obtain and maintain such insurance amount s and cover ag es. Subcontrac tor shall provide to Contractor a certified copy of any and all applicable insurance policies and/ o r endorse ments within fifteen (15) day s of any reque st of Contractor. The non-proc ureme nt of such insurance by the Subcontrac tor, or the non-delivery of such certificates or policies to Contractor, whether inadvertently or otherwise, shall not constitute waiver

of subcontra ctor’s oblig ations here under.

* * *
27.2 SCHEDULE OF

I NSURANCE COVERAGES
* * *
2 7

. 2

. 3 Co mm e r c ia

l L ia bility I nsuranc e $2,000,000 g ener al ag g reg at e , an d $ 2
, 0 0 0
, 0 0 0

-3-com p l et ed operations ag g reg ate, and $2,000,000 eac h occur renc e for bodily injuries, death a nd property

damag e resulting from any one occur renc e, including the following

cover ag es and c onditions:
1. Shall name Contractor, Owner and L ender
, if any , and any other p ar t i es desig nated by the Contractor as Additiona l I n s u reds as their interests may appea r pursuant to I SO Additional I nsured Endorseme nt CG 2010 (or the most rec ent form of said endorse ment , if applicable ), including but not limit ed to the following entities: Westfield Homes of I llinois , I nc. (Sample Certificate A ttached) Westfield Development Corpor ation of I llinois Westfield Homes USA
A copy of such Additional I nsured endorse ment shal l b e at t ached to the Certifica te of I nsuranc e, and the endorse ment number or desig nation shall be enter ed on the Certificate.” ¶ 9 On September 4, 2001, a certificate of insurance was issued by S ea m l es s ’s insurance
ag ent, listi ng Seamless as the insured and Westfield a s the certificate holder. There was no ref ere nce to Westfield as an additional insured on the certificate. The certificate provided as follows:
“THI S CERTI FI CATE I S I SSUED AS A MATTER OF I NFO R M AT I ON ONL Y AND CONFERS NO RI GHTS UPON T HE CERTI FI CATE HOLDER. THI S CERTI FI CATE DO E S NOT AMEND, EXTEND OR AL TER THE COVERAGE AFF ORDED B Y THE POL I CI ES BEL OW.” ¶ 10 I n 2001, Westfield was dissolved, and Cambridg e acquir ed Westfield’s assets, including the Alg onquin site. Cambridg e was added as an additional insured pursuant t o an endorse ment to the Owner s policy

.

¶ 11 B. The I nsuranc e Policies ¶ 12 1. Owners Policy ¶ 13 Owner s issued a commerc ial g ener al liability (CGL ) policy of insurance to Seamless as the named insured for the eff ective policy period of J uly 1, 2001, to J uly 1, 2002. The CGL policy provided in pertinent part as f ollows:
“1. I nsuring Ag ree ment

a. We will pay tho s e sums that the insured become s leg ally obligated to pay as damag es beca

use of ‘bodily injury ’ or ‘prope rty damag e’ to which this insurance applies. We will have the rig ht and duty to defe nd any

‘suit’ seeking those damag es.” The Ow ners policy

contained the following exclusion t o the above cover ag e: “This insuranc e does not a pply to: * * *
e. ‘B odily injury ’ to: (1) An employ ee of the i nsured arising out of and in the course of e mploy ment

-4-by the insured; or (2) The spouse, child, pare nt, brother or sister of that employ ee as a conseque nce of (1) above. This exclusi on applies: (1) W hether the i nsured may be li able as an em p l o y er or i n any other capac ity ; and (2) To any obligation to share damag es with or repay someone else who must pay damag es bec ause of

the injury

. This exclusi on does not a pply to liability assumed by the insured under a n ‘insured
contra ct.’ ”

¶ 14 2. Auto-Owners Policy ¶ 15 Auto-Owne rs issued a commerc ial umbrella insurance policy to Seamless. I n add i t i o n to Seamless, the named insure d, the following wer e also insure ds under the policy : “Any person, org anization, trustee or estate with respe ct to which y ou are obligated by virtue of a written contra ct to provide insurance such as is aff orded by this policy
, but only with respec t to operations by or on beha lf of, or to fa cilities of or used by y ou.” The Auto-O wner s policy

contained the following exclusion: “This policy

does not apply

to: C. 1. Bodily I njury or per sonal injury of an e mploy ee of the i nsured arising out of and in the c ourse of

employ ment by

the insured; or
2. A loss or claim by the spouse, child, pare nt, br other or sister of the employ ee of the insure d as a c onsequenc e of C.1. This exclusi on applies:
1. whether the insured may be liable as an employ er or in any other capa city ; and
2. to any obligation to share damag es with or repay someone else who must pay damag es bec ause of

the injury

. This exclusi on does not apply to: 1. liabilityassumed by

the insured unde r an insure d contra ct; or 2

. bodily injury with respe ct to which insurance is provided such insur ed b y schedule d underly ing insura nce.”

¶ 16 C. The Under ly ing Complaints ¶ 17 On November 5, 2004, Eric and Amy Gulbrandse n filed a personal i n j u ry s u i t ag ainst Westfield and Seamless. The complaint alleg ed that, on J anuary 21, 2002, Mr. Gulbrandse n was injured w hen he f

ell at the Alg onquin site. The complaint containe d no alleg ation that Mr. Gulbrandse n was an employ ee of either S eamless or Westfield. Howeve r, in an af fi rm at i v e d ef

en s e, S ea m less alleg ed t h at M r. Gu l b ra n d s en wa s t h e j o b superintende nt/foreman for Westfield a nd was in the course of his employ ment on J anuary

-5-21, 2002.

¶ 18 Seamless filed a third-par ty complaint ag ainst Cambridg e, s ee k i n g contribution in the
event it was found liable to the Gulbrandse ns. Seam l es s all eg ed that Cambridg e had purcha sed the assets and liabiliti es of Westfield, including t h e Al go nquin site, and was in char g e of the site at the time of Mr. Gulbr andsen’ s fall. ¶ 19 Westfield and Cambridg e tender ed their defe nses to Owner s, wh ic h O w n e r s d e clined. On J anuary 24, 2007, the Gulbrandsen suit was settled.

¶ 20 D. Summary J udg ment ¶ 21 On J anuary 17, 2007, the pl aintiffs filed their declaratory judgme nt complaint. I n their amende d compl ai n t, the insurers soug ht a decla ration that Westfield’s rig hts, if any , wer e determined by the terms and conditions of the Owner s policy
, not the certificate of insurance

. The plaintiffs also soug ht a decla ration that they had no duty to defe nd Cambridg e under the policy exclusion for bodilyinjuries suffe red by an employ ee. ¶ 22 The plaintiffs filed a moti o n fo r s u m m ar y j u d gment, alleg ing that the certificate of insurance did not establish that W estfield wa s an additional i nsured on the O wner s policy

. They further alleg ed that the Owner s policy exclusions operated to deny cover ag e to Cambridg e. ¶ 23 I n response t o t h e m o t i o n for summary judgme nt, the defe ndants maintained that the plaintiffs wer e estopped from den y i n g cover ag e beca use their decla

ratory judgme nt complaint was not filed t i m el y

. The defe ndants further maintained that the plaintiffs had waived the rig ht to contest Westfield’s status as an additional insured beca use, prior to the filing of the complaint, Owner s had never asserted that Westfield was not an additional insured, pointing out that Owner s had denied cover ag e to Westfield based on an exclusion,

a pplicable to additional insureds. I n the alternative, the defe ndants maintaine d th at th e r e w e r e questions of fac t as to whether the certificate of insurance convey ed additional-insured status on Westfield. ¶ 24 The defe ndants also maintain ed t h at W es t fi eld was an insured under A uto-Owne rs’ umbrella policy under the “written contra ct” provision. Be cause the umbrella policy require d Auto-Owne rs to provide an insured with a defe nse in the event there was no primary

cover ag e for an incident cover ed under the policy
, the defe ndants arg ued that Auto-Owne rs

was re quired to def

end Westfield in the Gulbra ndsen suit. ¶ 25 I n re s ponse, t he plainti ffs disput ed the untimeliness of t heir complaint and maintained that they wer e not require d t o ra i s e all of their policy defe nses in their denial of cover ag e letters to t h e d efendants. They denied that a question of fac t exis ted as to whether the

certificate of insurance convey ed additi o n al-insured status on Westfield. The plaintiffs pointed out that the contra ct betwee n Seamless and Westfield require d Seamless to provide primary , noncontributory insurance cover ag e, not umbrella c overa g e. ¶ 26 On September 23, 2008, the circ uit court enter ed the f ollowing or der: “(1) Plaintiff’s [ sic ] motion for Summary J udg ment is denied; (2) the Court finds, on its o wn ru l i n g, that Plaintiffs Owner s and Auto-Owne rs have a duty to defe nd and

-6-indemnify Def endants Westfield and Cambridg e; and that Plaintiff insurers are estopped from raising cover ag e defe nses; (3) that this is a final judgme nt for purposes of Supreme Court Rule 304(a) a nd the ca se is here by terminated.” This appea l followed.

¶ 27 I I . ANAL YSI S ¶ 28 A. Standard of Review ¶ 29 T h e d e n o vo s t andard of revie w applies to our revie w of a circ uit court’s g rant o f
summary judgme nt. Luise, Inc. v. Village of Skokie
, 335 I ll. App. 3d 672, 678 (2002). The construction of the provisions of an insurance policy prese nts a question of law to which the de novo standard of revie w i s also applicable . See Hobbs v. Hartford Insurance Co. of the Midwest , 214 I ll. 2d 11, 17 (2005). ¶ 30 The principles g uiding our revie w of the g rant o f s u m m ar y j u dg ment are well settled. “Summary judgme nt is proper if, and only if, the pleading s, depositions, admissions, aff idavits and other r eleva nt matters on file show that ther e is no g enuine issue of material fac t and that the movant is entitled to judgme nt as a matter of law

. ” Il linois Farmers Insurance Co. v. Hall
, 363 I ll. App. 3d 989, 993 (2006). The court will uphold the g rant of
summary judgme nt only when the rig ht of the moving party is fre e from doubt. Hall
, 363 I ll. App. 3d at 993.

¶ 31 B. D iscussion ¶ 32 1. Duty to Defe nd W estfield ¶ 33 Two require ments must be satisfied befor e the duty to defe nd arises: (1) the action must be bro u gh t against an insured, and (2) the alleg ations of the complaint must disclose the potential for policy cover ag e. Fede ral Insurance Co. v. Economy Fire & Casualty Co.
, 189 I ll. App. 3d 732, 735 (1989). W here the allega ti ons of t he complaint reve al t hat t he action

was not broug ht ag ainst an insured and there was no potent i al cover ag e under the policy
, there is no duty to de fend the underly ing action. Fede ral Insurance Co., 189 I ll. App. 3d at 735. T h u s , the threshold inquiry is whether Westfield was an insured under the plaintiffs’ policies. ¶ 34 Our court has rec og nized two lines of case s addre ssing the issue of cover ag e wher e there is a certificate of insurance separ ate from the policy itself. Where the cer tificate did not ref

er t o the policy and the terms of the certificate conflicte d with the terms of th e p o l i cy , t h e

certificate lang uag e g overne d the extent and terms o f t h e cover ag e. Where the certificate ref err ed to the policy and expressly disclaimed any cover ag e other than that contained in the policy itself, the policy g overne d the extent and terms of the cover ag e. United Stationers Supply Co. v

. Zurich Am erican Insurance Co.
, 386 I ll. App. 3d 88, 102 (2008) (ca ses cited there in). ¶ 35 I n United Stationers Supp l y C o

. , t h e p l ai n t i ff was issued a certificate of insuranc e containing a disclaimer that the cover ag e was g overne d by the policy itself. The construction
contra ct require d that the plaintiff be named as an additional in s u re d o n differ ent types of

-7-insurance
, but not on CGL insurance

. The indemnification provision of the contra ct did not

require the purcha se of insurance for the plaintiff. United Stationers Supply Co.
, 386 I ll. App. 3d at 104. The court analy z ed t h e decisions in W est American Insurance Co. v. J.R. Construction Co.
, 334 I ll. App. 3d 75 (2002), American Country Insurance Co. v. Kraemer Brothers, Inc.
, 298 I ll. App. 3d 805 (1998), and Pek in Insurance C o

. v A me r i can Country Insurance Co. , 213 I ll. App. 3d 543 (1991). ¶ 36 I n Pek in Insurance Co.
, the contra ctor was denie d additional-insured status wher e the

certificate contained the disclaimer, requiring the contra ctor to look to the terms of the policy
to determine cover ag e. As there was no cover ag e under the policy
, th er e wa s no duty to defe nd. Pek in Insurance Co.
, 213 I ll. App. 3d at 547-48. I n Kraemer Brothers, Inc
., the

certificate of insurance contained a di sclaimer and, t here fore
, the contractor wa s bound by the exclusions and conditions in the policy

. Kraemer Brothers, Inc.
, 298 I ll. App. 3d at 811. ¶ 37 I n J. R

. C o n s t r u ct i o n C o

. , ev en though the certificate of insurance contained the disclaim er , t h e revie wing court found that, when considere d toge ther, the policy and the

certificate provided cover ag e to the contra ctor. The certificate listed th e contra ctor as an additional insured; t he subcontractor never de nied t hat t here was an oral ag ree ment to add J .R. Construction as an additional insured; an d a n u m ber of documents prepa red by the i n s u re r confirmed that J .R. Construction was an additional insured under the policy

. J.R. Construction C o. , 334 I ll. App. 3d at 84-85. ¶ 38 The court in United Stationers Supply Co. chose to follow the line of case s holding that, wher e the certificate ref

ers to the policy and expressly disclaims any cover ag e other than that contained in the policy
, the policy g overns the extent and the terms of the cover ag e. Finding J.R. Construction Co. distinguishable, the court conclude d as a matter of law t h at United Stationers was not an a dditional insured under the CGL policy based on the following : “(1) United Stationers is not specific ally listed as an additional insured in the policy ; (2) the construction contra ct requiring D.C. Tay lor to purcha se insurance on b ehalf of United Stati o n er s did not specific ally require the purcha se of a commerc ial g ener al liability policy ; ( 3) there is no evidenc e of intent by the par ties that United Stationers was to be added as an additional insured; and (4) the d i s cl aim er lang uag e in the certificate of insurance put United Stationers on notice that t h e C GL policy lang uag e g overne d

cover ag e of additional insureds.” United Stationers Supply Co.
, 386 I ll. App. 3d at 105. ¶ 39 W e h av e rec onsidered the determination in our prior order that a g en u i n e m at er i al question of fact ex isted as to Westfield’s status as an additional insured under the Owners policy and conclude that our relianc e o n J. R

. Construction Co. was misplaced. L ike J.R. Construction C o., there was an ag ree ment to name the contra ctor as an additional insured. I n both case s, the certificate contained the disclaimer, but, wher eas in J.R. Construction Co.
, the contra ctor was listed as an additional insured, in this case , Westfield was not listed as an additional insured in the certificate. A prior cer tificate issued to Westfield for a prior policy period did list it as an additional insured. The fac t that the certificate at issue in this case did
not ref er to Westfield as an additional insured should ha ve aler ted Westfield tha t the re was

some question as to its additional-insured status, requiring it to revie w the policy and bring the discrepa ncy to Seamles s ’ or Owner s’ attention. There was no evidenc e that Westfield

-8-ever reque sted to view the CGL policy to verify its status as an additional insured. I n light of all the evidenc e, the fac t that Owner s did not question Westfield’s status as an insured in ref using th e t en d er o f its defe nse of the Gulbrandse n suit did not raise a g enuine issue of materia l fac t so as to bar summary judgme nt. ¶ 40 We conclude that, as a matter of law, Westfield was not an additional insured under the Owner s policy . There fore , Owner s had no duty to defe nd Westfield. ¶ 41 The defe ndants maintain t h at W es t fi el d wa s an insured under the written contra ct provision of Auto-Owne rs policy and there fore Auto-Owne rs had a d u ty to defe nd Westfield. We disag ree

. Acc ording to the written contra ct provision, Westf i el d wo u ld be an insured under the Auto-Owne rs policy if the construction contra ct require d umbrella cover ag e. The construction contra ct did not require Seamless to provide umbrella cover ag e. As Westfield

was not an insured under the written contra ct provision of the policy
, Auto-Owne rs did not have a duty to defe nd Westfield.

¶ 42 2. Duty to Defe nd Cambridge ¶ 43 The plaintiffs contend that there was no duty to defe nd Cambridg e in the third-party suit broug ht ag ainst it by Seamless bec ause the policies excluded cover ag e for bodily injury suffe red by an insured’s employ ee. As Mr. Gulbrandse n was Cambridge’ s em ploy ee, the plaintiffs maintain that there was no c overa g e for Cambridg e under

the policies. ¶ 44 To determine whether an insurer has a duty to defe nd its insured from a lawsuit, a court compar es the fac ts alleg ed in the underly ing complaint t o the rele vant portions of the insurance policy

. Valley Forge Insurance Co. v. Swiderski Electronics, Inc
., 223 I ll. 2d 352, 363 (2006). The insurer is obligated to defe nd the insured i f the complaint alleg es fac ts within or potentially

within the pol icy ’s coverag e. Valley Forge Insurance Co. , 223 I ll. 2d
at 363. The insurer must defe nd the insured even if the alleg ations are false or g roundless and

even if only one theory of rec overy is cover ed under the policy

. Valley Forge Insurance Co.
, 223 I ll. 2d at 363. There fore
, we must determine whether the alleg ations of Seamless’s thirdparty complaint disclose the potential of policy cover ag e. Fede ra l In s u rance Co.
, 189 I ll. App. 3d at 735. ¶ 45 I n order for the employ ee exclusion under the Owner s policy to apply
, Mr. Gulbra ndsen must have bee n both a n employ ee of Cambridg e and in the course of his employ ment with Cambridg e at the t ime of hi s acc ident. I n its third-party complaint for contribut i o n ag ainst Cambridg e, S eamles s alleg ed that in October 2001, Westfield and it s assets, i ncluding the Alg onquin site, had been purcha sed by Cambridg e. At the time of M r. Gulbrandse n’s

ac ci d en t , Cambridg e was the owner and the g ener al contra ctor for the Alg onqui n construction site and was Mr. Gulbrandse n’s employ er. The third-party complaint repe ated the alleg ations from the Gulbrandse n complaint that Mr. Gulbrandse n w a s le a v ing a dwelling on the Algonquin construction si te when he sl ipped and fell on an unnatural ac cumulation of ice. I t fur t her alleg ed that Cambridg e brea ched its duty to maintain and supervise its
property and to exercise due car e and caution for the safe ty of Mr. Gulbrandse n, setting forth

v ar ious acts alleg ed to constitute neg lige nce on the part of Cambridg e toward Mr. Gulbrandse n.

-9-¶ 46 I n o u r p ri o r o rd er , we d et er m i n ed that, in the absenc e of an alleg ation that Mr.

Gulbrandse n was in the course of his empl o y ment at the time of his acc ident, there was a potential for c overa g e for Cambridg e under

the Owner s policy . There fore , Owner s owed a duty to defe nd Cambridg e in the Seamless third-party suit. Owners Insurance Co.
, slip order at 18. I t is thi s finding that the supreme c ourt order ed us to rec onsider in light of W ilson

. ¶ 47 I n W

ilson
, the court pointed out that the rule that courts look solely to the alleg ations of the complaint in deter

mining whether there is a dut y to defe nd is a “ge nera l rule.” W ilson
, 237 I ll. 2d at 458. The court noted that in American Economy Insurance Co. v. Holabird & Root
, 382 I ll. App. 3d 1017 (2008), the appellate court considere d the al l ega t i ons of the complaint, the third-party complaint and the rele vant lang uag e of the insurance policy in determining that the insurer owed a duty to defe nd. W ilson
, 237 I ll. 2d at 460. The supreme court quoted the following lang uag e fr om Holabird & Root : “ ‘[C] onsideration of a third-party complaint in determining a duty to defe nd is in line with the g ener al rule that a trial court may consi d er ev i d en ce bey ond the underly ing

co m p l ai n t if in doing so the trial court does not determine an issue critica l to the underly ing action [citation]

. *** T h e t r i a l court should be able to consider all the relev ant facts contained in the pleadings, including a third-party complaint, to d e te r m ine whether there is a duty to defend. After all, the trial court need not wea r judicial blinders and may look bey ond the complaint at other evi d en ce appropriate to a motion for

s u mm a r y ju d g ment. [C itations.] ’ (Emphasis added.) ” (I nterna l quotation marks o mi tt e d

. ) W ilson
, 237 I ll. 2d at 460-61 (quoting Holabird & Root
, 382 I ll. App. 3d at 1024, 1031- 32). See Fidelity & Casualty Co. of New Y ork v. Envirodyne Engineers
, Inc.
, 122 I ll. App. 3d 301 (1983); in acc ord Pek in Insurance Co. v. Pulte Home Corp.
, 404 I ll. App. 3d 336 (2010). I n

a summary judgme nt proce eding
, when determini n g wh et her a duty to defe nd exis ts, the
court is not limit ed to considering the alleg ations of the complaint but may consider evidenc e usually considere d in ruling on a m otion for summ ary judgme nt, so long as such evidence does not tend to determine an issue critica l to the determination of the underly ing law suit. See W ilson
, 237 I ll. 2d at 462 (re ly ing on the considerations set forth in Holabird & Root and Envirodyne Engineers, Inc

. ). ¶ 48 I n our prior order
, we noted that “[w]hi le the Seamless third-party complaint alleg ed that Mr. Gulbrandse n was Cambridg e’s employ ee at the time he fell, there was no alleg ation that Mr. Gulbrandse n was in the course of his employ ment at that time.” Owners Insurance Co., slip order a t 18. Cambridg e’s complaint ag ainst Seamless di d alleg e that Mr. Gulbr andsen was inj ured while he was employ ed by Cambridg e and perf orm i n g work at the Algonquin site. We declined to consider those alleg ations beca use that complaint was not a part of the

rec ord on appea l. Owner s In s urance Co.
, slip order at 18 (citing Carroll v. Faust, 311 I ll. App. 3d 679, 725 N.E.2d 764 (2000))

. I n rea ching our determination that there was potential for covera g e fo r C am b ri d g e under the Owners pol icy
, we noted, but did not consider, that “[i] n its answe r and aff

irmative defe nses, Seamless alleg ed that Mr. Gulbrandse n was in the

course of his employ ment with Cambridge .” Owners Insurance Co. , slip order a t 18 n. 5. ¶ 49 I n ruling on a summa r y ju dg ment motion, the court considers “the pleading s, depositions,

-10-admissions, aff idavits and other rele vant matters on file.” Hall
, 363 I ll. App. 3d at 993; 735 I L CS 5/2-1005(c) (West 2006). I n its first aff irmativ e defe nse to the Gulbrandse ns’ complaint, Seamless alleg ed that “[o] n J anuary 21, 2002, the plaintiff, Eric Gulbrandse n was in the course of his employ ment with the Co-defe ndant, Westfield Homes, and was supervising the construction of the multi-family being ere cted in Al go n q uin, I llinois .” Seamless’s amende d answe r and aff irmative defe nses to the Gulbrandse n’s complaint wer e included in an exhibi t to the plaintiffs’ amende d complaint for decla ratory ju d gm en t , and there fore
, proper ly considere d by a court in ruling on summary judgme nt. The evidenc e that Mr. Gulbra ndsen wa s in the course of hi s employ ment when the acc ident occur red did not determine the outcome of the underly ing case

. See Holabird & Root
, 382 I ll. App. 3d at 1032 (alleg ation that subcontrac tor installed the light s d i d not determine an issue critica l to the underly ing la wsuit or the ultimate finding of neg lige nce)

. ¶ 50 As we previously observe d, our revie w of the g rant of summary judgme nt is de novo

. We consider the entire rec ord in determining whether summary judgme nt was proper ly g rante d. Makowski v. City of Naperville
, 249 I ll. App. 3d 11 0
, 1 1 5 (1993). We are awa re that any doubt as to the duty to de fend must be resolved in f avor of the insured. Pulte Home Corp.
, 404 I ll. App. 3d at 340. Considering all of the e vidence in the rec ord pertinent to ruling on a motion for summary

judgme nt, we find no e vidence raising a g enuine question of fa ct as to whether Mr. Gulbrandse n was in the course of his employ ment with Cambridg e at the time of his acc ident. As the employ ee ex cl u s i o n in the Owner s policy applied, there was no potential for cover ag e for Cambridg e under the Owner s policy

. There fore
, the plaintiffs had no duty to defe nd Cambridg e in the Seamless third-pa rty suit.

¶ 51 3. Estoppel ¶ 52 The defen d an t s m ai n t ai n t h at t h e decla ratory judgme nt suit was not timely filed. There fore , the plaintiffs we re e stopped from ra ising a ny policy defe nses. ¶ 53 I n order t o av o i d t h e ap p l i ca tion of the estoppel doctrine, an insurer that takes the
p o s i t i o n that the policy does not provide cover ag e may not simply ref use to defe nd t h e i n s u re d but must either (1) defe nd the suit under a rese rvation of rig hts, or (2) seek a decla ratory judgme nt that there is no cover ag e. Employe rs Ins u ra nce of W ausau v. Ehlco Liquidat ing Trust
, 186 I ll. 2d 127, 150 (1999). Howeve r, the “estoppe l doctrine applies only wher e [t he] insure r has brea ched its duty to de fend.” Employe rs I nsurance of W

ausau , 186 I ll. 2d at 151. ¶ 54 I n view of our determination that the plaintiffs had no dut y t o d ef en d
, t h e estoppel doctrine doe s not apply

to bar the policy

defe nses.

¶ 55 4. W aiver ¶ 56 Finally
, the defe ndants maintain that the plaintiffs waived their rig ht to raise any policy defe nses that wer e not ra ised in their denial of cover ag e. ¶ 57 This c ourt disag ree d with the sug g estion in Coulter v. American Employe rs’ Insurance Co., 333 I ll. App. 631 (1948), that in any case an ins urer ref used cov er age on one ground,

-11-it waived the rig ht, or was estopped, to deny cover ag e on another g round. Jones v. Universal

Casualty Co.
, 257 I ll. App. 3d 842, 852 (1994). I nstead, we found the better rule to be “that insureds m ust show that they relied to their detriment upon the insurer’ s failure to assert a particula r defe nse.” Jones
, 257 I ll. App. 3d at 852. For ex am p l e, an insurer should not be allowed to asser

t a blanket denial of cover ag e and then assert the insured’s failure to provide proof of loss, since the l aw d o es n o t require the insured to perf orm what appea

red to be a useless ac t. Jones , 257 I ll. App. 3d at 852. ¶ 58 The evidenc e does not establish that the defe ndants wer e prejudice d by the failure to raise the policy defe nses not raised in their denial of cover ag e letters. The defe ndants sug g est that, beca use they wer e unawa

re t hat Westfield’s status as an additional insured would be challeng ed, they had no opportunity to o b t ain evidenc e to establish that Westfield was an additional insured. Howeve r, the defe ndants do not indicate wh at evidenc e beside the Owner s policy , the ce rtificate of i nsuranc e and the construction contra ct, all of which they had acc ess to, they could have prese nted. Moreove r, the defe ndants wer e not preve nted from producing evidenc e in this proce eding to establish that Westfield was an additional insured. ¶ 59 We conclude that the plaintiffs did not waive any cover ag e defe nses not set forth in the ir denial of c overa g e letter s.

¶ 60 I I I . CONCL USI ON ¶ 61 For all of the fore g oing rea sons, we reve rse the order g ranting summary judgme nt to the defe ndants and deny ing t he plaintiffs’ motion for summary judgme nt. Pursuant to I llinois Supreme Court Rule 366(a) (5) (ef f. Fe b. 1
, 1 9 9 4 ), we enter summary judgme nt for the plaintiffs on their complaint for decla ratory judgme nt. Dec iding this case as we do, we need
not addre ss whether the circ uit court err ed in g ranting summary judgme nt to the defe ndants in the absenc e of the ir reque st for such r elief.

¶ 62 Reverse d.

-12-