(Supplemental opinion filed 11/6/17). Defendant construction company entered into a construction contract with landscaping company. Employee of landscaping company was injured at construction site and sued Defendant construction company for construction negligence. Insurer filed declaratory judgment action claiming it did not have a duty to defend construction company as an additional insured under landscaping company’s insurance policy. Court abused its discretion in granting construction company’s motion to stay. Declaratory judgment action can proceed to resolution prior to conclusion of underlying suit. Court should not consider construction company’s 3rd-party complaint in its determination of insurer’s duty to defend. Factual allegations in amended complaint state a vicarious liability claim that falls within coverage of insurance policy, and it was not an improper or unsupported attempt to plead into coverage. Thus, court should consider amended complaint in its duty to defend determination. As appellate court reversed trial court’s order staying proceedings, costs must be taxed against defendants as the appellees. (CARTER and O’BRIEN, concurring; O’BRIEN dissenting upon filing of a supplemental opinion.)
Illinois Appellate Court
Civil Court
Insurance