Country Mutual Insurance Company v. Durkin Electric Company, Inc

2022 IL App (1st) 210293-U FIFTH DIVISION August 5, 2022 No. 1-21-0293 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT COUNTRY MUTUAL INSURANCE ) Appeal from the COMPANY, ) Circuit Court of Cook County. ) Plaintiff-Appellee and Cross Appellant, ) ) v. ) Case No. 2017 CH 08905 ) DURKIN ELECTRIC COMPANY, INC., ) Honorable Raymond W. Mitchell, COMMONWEALTH EDISON COMPANY, ) Judge, Presiding. GEORGE MOYETT, and PAOLA VARGAS ) ) Defendants ) ) (Durkin Electric Company, Inc. ) Defendant-Appellant and Cross-Appellee). ) JUSTICE CONNORS delivered the judgment of the court. Justices Hoffman and Cunningham concurred in the judgment. ORDER ¶1 Held: The circuit court’s order that denied plaintiff’s motion for partial summary judgment and found that defendant was an additional insured under the policy was proper. The circuit court’s order that denied defendant’s motion for summary and found that plaintiff did not have a duty to defend or indemnify defendant under the policy was proper; affirmed. ¶2 This appeal involves a declaratory judgment action between appellant/cross-appellee, Durkin Electric Company (Durkin), and appellee/cross-appellant, Country Mutual Insurance No. 1-21-0293 Company (Country) related to insurance coverage in an underlying personal injury action filed against Durkin. Durkin tendered defense and indemnity of the underlying action to Country. Thereafter, Country filed a complaint for a declaratory judgment against Durkin, in which it requested the court declare that Durkin was not an additional insured, and that Country did not have an obligation to defend Durkin under the insurance policy between Country and B3 Integrated Solutions (B3), who was Moyett’s employer. Durkin now appeals from the circuit court’s order that denied its motion for summary judgment on Country’s complaint for declaratory judgment and found that Country did not have a duty to defend or indemnify Durkin in the underlying case. In Country’s cross-appeal, it appeals the circuit court’s order that denied its motion for partial summary judgment and found that Durkin was an additional insured under the policy at issue. We affirm. ¶3 I. BACKGROUND ¶4 Underlying Case ¶5 In the underlying case, in early 2017, plaintiffs George Moyett and Paola Vargas filed a complaint against Durkin, Commonwealth Edison Company (ComEd), Mid City Nissan, Inc. d/b/a Berman Nissan of Chicago, Inc. (Mid City), and Tribus Services, Inc f/k/a Corix Utility Services. Plaintiffs subsequently filed amended complaints, and in their fourth amended complaint they alleged claims for negligence and loss of consortium on behalf of Moyett’s wife, Vargas, against each defendant. They alleged that Mid City owned and operated property at 3456 North Kedzie Avenue in Chicago and that ComEd supplied, operated, and owned the mechanical and electrical equipment on the property. ComEd contracted with Durkin to provide services for the electrical equipment located at the property. On April 5, 2017, ComEd’s mechanical and electrical equipment malfunctioned or was defective. The equipment caught fire and injured -2- No. 1-21-0293 Moyett. As for the …

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