Central Illinois Compounding, Inc. v. Pharmacists Mutual Insurance Co.
Central Illinois Compounding, Inc. v. Pharmacists Mutual Insurance Co.
Opinion
*77 ¶ 1 Central Illinois Compounding, Inc., d/b/a Preckshot Professional Pharmacy (Preckshot) filed suit against Pharmacists Mutual Insurance Company (Pharmacists Mutual), alleging that Pharmacists Mutual breached the insurance policy contract between the parties by denying Preckshot's claim. Pharmacists Mutual filed a counterclaim seeking a declaratory judgment that Preckshot's claim was barred by exclusions in the policy. Pharmacists Mutual, in its capacity as counterplaintiff, filed a motion for summary judgment, which the circuit court granted. On appeal, Preckshot argues that the circuit court's ruling was erroneous because Pharmacists Mutual failed to demonstrate that Preckshot's claim was excluded by the policy. We affirm.
¶ 2 FACTS
¶ 3 On December 10, 2015, Preckshot was operating Preckshot Professional Pharmacy in a leased space located at 5832 North Knoxville Avenue in Peoria. At that time, a contract of insurance was in force between Preckshot and its insurer, Pharmacists Mutual. According to the undisputed facts of the case, AT & T and its subcontractor were performing directional boring behind Preckshot's premises. That boring was not related to Preckshot in any way, was not performed at the behest of Preckshot, and was not done on Preckshot's premises. The boring damaged a water service line located approximately 18 inches from the Preckshot premises, causing a discharge of water that inundated the Preckshot premises above the ground. All direct physical loss and damage to the premises occurred above the surface of the ground.
¶ 4 Preckshot subsequently contacted Pharmacists Mutual to file a claim pursuant to its insurance policy. Pharmacists Mutual, in turn, dispatched Steven Little of Dona Engineering to Preckshot to determine the precise cause of the damages. Little concluded that the water from the struck line flowed through under a concrete slab and came up through the ground to infiltrate the Preckshot interior. In a letter dated January 22, 2016, Pharmacists Mutual denied coverage for Preckshot's claim, asserting that the claim was barred by exclusions in the policy. Specifically, Pharmacists Mutual stated that the policy excluded perils caused by "water below the surface of the ground." Pharmacists Mutual also pointed out that the claim was subject to an exclusion for "Defects, Errors, or Omissions."
¶ 5 Preckshot filed suit against Pharmacists Mutual, claiming breach of the insurance policy. Count II of the suit alleged that Pharmacist Mutual's denial of the claim was vexatious and unreasonable and therefore made in bad faith under section 155(1) of the Illinois Insurance Code. See 215 ILCS 5/155(1) (West 2016). Pharmacists Mutual filed a counterclaim for declaratory judgment. Citing the same exclusions it had referenced in its letter to Preckshot (see supra ¶ 4), Pharmacists *1000 *78 Mutual prayed for a declaration that it was "not obligated to provide coverage or pay benefits under the Policy." The counterclaim did not reference the claim of bad faith raised in count II of Preckshot's original suit.
¶ 6 Preckshot subsequently filed a motion for summary judgment with respect to Pharmacists Mutual's counterclaim. Pharmacists Mutual then filed a combined motion for summary judgment, seeking summary judgment in its capacity as defendant with regard to the two counts of Preckshot's original suit, as well as seeking summary judgment in its capacity as counterplaintiff with regard to its counterclaim for declaratory relief.
¶ 7 Following briefing and oral arguments, the circuit court denied Preckshot's motion for summary judgment, granted Pharmacists Mutual's motion for summary judgment, and declared that Pharmacists Mutual "is not obligated to provide coverage or pay benefits under the Policy." Specifically, the circuit court found that coverage was excluded under both the "water below the surface of the ground" exclusion and the "Defects, Errors, or Omissions" exclusion.
¶ 8 ANALYSIS
¶ 9 On appeal, Preckshot argues that the plain language of the insurance policy shows that the two exclusions cited by Pharmacists Mutual were inapplicable to its claim and that the circuit court therefore erred in granting summary judgment in favor of Pharmacists Mutual. Preckshot also argues that since Pharmacists Mutual's denial of the claim was done in bad faith, the circuit court also erred in granting summary judgment as to count II of Preckshot's suit. We find that the damage to Preckshot's property was caused by "water below the surface of the ground," as contemplated by the exclusion in question, and that Pharmacists Mutual was therefore not obligated to provide coverage or pay benefits under the policy.
¶ 10 Summary judgment is proper only where the materials on the record-including pleadings, depositions, admissions, or affidavits-when construed in the light most favorable to the nonmoving party demonstrate that there is no issue as to any genuine material fact and that the moving party is entitled to judgment as a matter of law.
Shannon v. Boise Cascade Corp.
,
¶ 11 An insurance policy is a contract, and the rules of contract interpretation apply to the interpretation of an insurance policy.
Id. at 433,
¶ 12 The policy in force between Preckshot and Pharmacists Mutual contains a section labeled "Additional Exclusions." Subsection 9 is simply titled "Water," and reads as follows:
" 'We' do not pay for loss or damage caused by:
1) ***
2) ***
3) ***
* * *
4) water below the surface of the ground. This includes water that exerts pressure on or flows, seeps, or leaks through or into:
a) basements, whether paved or not;
b) doors, windows, or other openings;
c) foundations, floors, walls, or paved surfaces; or
d) swimming pools, septic tanks, or other structures[.]"
Preckshot insists that "[t]he plain and ordinary meaning of this exclusion makes it clear that the exclusion only applies to loss or damage and water which is below the surface of the ground."
¶ 13 The grammatical structure of the policy renders the portion of Preckshot's argument relating to the location of the loss or damage plainly incorrect. In short form, the policy indicates that Pharmacists Mutual does "not pay for loss or damage caused by: *** water below the surface of the ground." The presence of the colon-as well as three intervening paragraphs-makes clear that the clause, "below the surface of the ground," applies only to the origination of the "water." The actual loss or damage need not be below the surface of the ground.
¶ 14 Still, Preckshot argues that the water that seeped up through its floor was no longer "water below the surface of the ground" at the time that it caused damage or loss. Thus, Preckshot concludes, the damage was not caused by water below the surface of the ground, but by water above the surface of the ground. Pharmacists Mutual contends that the exclusion references the origin of the water, not its eventual destination.
¶ 15 Preckshot maintains that a contextual analysis of the policy supports its position. Specifically, it contends that subsections (a) through (d) refer primarily "to below-ground structures or ground-level structures that could suffer below-ground damage." Preckshot notes that subsection (a), basements, clearly refers to below-ground structures and that subsection (d), "swimming pools, septic tanks, or other structures," does as well. Preckshot next asserts that "Category (c), foundations, floors, walls, or paved surfaces, reasonably interpreted refers to structures which typically have surfaces that protrude below ground level or are located below ground level like basements and foundation walls, floors or paved surfaces." Finally, Preckshot concludes that those three subsections make clear that subsection (b) must be referring to structures such as "doors leading into basements, and basement windows built into below ground-level window wells."
¶ 16 We agree with Preckshot that contextual analysis of subsections (a) through (d) is necessary, but we disagree with its conclusions. To be sure, basements are necessarily underground. Pools and septic tanks, however, while they may be underground,
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are not inherently so. Similarly, while foundations are underground, "floors, walls, or paved surfaces" need not be. Finally, and most tellingly, doors need not be underground and windows are almost always
above
ground. Preckshot strains to argue that because of context, the simple word "doors" should be construed as "doors leading into basements," and the straightforward concept of "windows" should be construed as "basement windows built into below ground-level window wells." This is an attempt to read language into the policy that simply is not there. See
Barth
,
¶ 17 Furthermore, the listing of "basements" in subsection (a) tends to indicate that the floors, windows, doors, and walls listed elsewhere would include those
not
found in basements, lest those additional subsections be rendered wholly unnecessary. See
Dowd & Dowd, Ltd. v. Gleason
,
¶ 18 While there are no Illinois cases directly addressing the present issue, certain cases from outside of our jurisdiction are persuasive. The policies at issue in
Bull v. Nationwide Mutual Fire Insurance Co.
,
¶ 19 In each case, the circuit court held that coverage was excluded.
¶ 20 We note that Preckshot argues that each of the three above cases is inapplicable
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*1003
because of comparative differences in the policy language. Specifically, Preckshot points out that the policies in question in those cases explicitly referenced water that flows, seeps, or leaks " 'through a building' " (
Bull
,
¶ 21 In summary, the structures listed in subsections (a) through (d) of the policy are not limited to those that are exclusively or inherently underground. Indeed, the listing of "basements" in subsection (a) makes clear that the structures listed elsewhere must not be limited to those in a basement. Accordingly, where water below the surface of the ground "seeps *** through" a floor, that water is necessarily no longer presently below the surface of the ground. The policy thus expressly contemplates the present scenario, where "water below the surface of the ground" seeped through the Preckshot floor and caused damage. Under the terms of the policy, that damage was excluded.
¶ 22 The second exclusion cited by Pharmacists Mutual, listed under "Defects, Errors, or Omissions," provided that Pharmacists Mutual does not pay for loss or damage resulting from "an act, error, or omission (negligent or not) relating to *** construction, repair, modification, [or] workmanship *** of property." Pharmacists Mutual insisted at the trial level, as it does on appeal, that the term "property" in that exclusion is not limited to Preckshot's property. While we are skeptical that this specific exclusion would apply, we need not address the argument directly, having already concluded that coverage was excluded. Similarly, because we find that an exclusion did apply, we need not consider the argument that Pharmacists Mutual acted in bad faith. We therefore affirm in full the circuit court's grant of summary judgment in favor of Pharmacists Mutual.
¶ 23 CONCLUSION
¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.
¶ 25 Affirmed.
Presiding Justice Carter and Justice O'Brien concurred in the judgment and opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.