No. 1-21-0267

Opinion filed May 10, 2022.

Second Division _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

NATIONWIDE PROPERTY AND CASUALTY INSURANCE ) Appeal from the COMPANY, Individually and as Subrogee of Davis ) Circuit Court of Concrete Construction Company, ) Cook County. ) Plaintiff-Appellant, ) ) No. 2018 CH 226 v. ) ) STATE FARM FIRE AND CASUALTY COMPANY, ) The Honorable ) David B. Atkins, Defendant-Appellee. ) Judge Presiding. _____________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.

OPINION

¶1 This declaratory judgment action stems from an underlying wrongful death suit in which

a 13-year-old boy was fatally struck by a dump truck driven by an employee of Davis Concrete

Construction Company (Davis Concrete) as he was returning to a road construction project. At

the time of the accident, Davis Concrete was insured by Nationwide Property and Casualty

Insurance Company (Nationwide), as well as by State Farm Fire and Casualty Company (State No. 1-21-0267

Farm). While both insurers eventually contributed to a settlement that was reached in the

underlying case, only Nationwide contributed on behalf of Davis Concrete.

¶2 Subsequently, Nationwide filed the instant declaratory judgment action against State

Farm, asserting that State Farm had a duty to defend Davis Concrete in the underlying suit under

a commercial general liability (CGL) policy and that it was entitled to indemnity from State

Farm for the settlement amount it contributed on Davis Concrete’s behalf. The parties filed

cross-motions for summary judgment on that issue, among other issues. The circuit court

ultimately concluded that State Farm had no duty to defend Davis Concrete in the underlying suit

because coverage was precluded by an automotive exclusion in the CGL policy and,

consequently, Nationwide was not entitled to indemnification for the settlement.

¶3 On appeal, Nationwide argues that the circuit court erred in concluding that no duty to

defend was triggered because the underlying complaint alleged facts concerning Davis

Concrete’s negligence that were not encompassed by State Farm’s automotive exclusion and thus

were within, or potentially within the policy’s coverage. Nationwide also argues, as it did below,

that State Farm was equitably estopped from raising any policy defenses to coverage because it

failed to either defend the underlying suit under a reservation of rights or timely seek a

declaratory judgment that it owed no coverage to Davis Concrete. For the reasons that follow, we

affirm in part and reverse in part the circuit court’s judgment and remand for further proceedings

consistent with this order.

¶4 I. BACKGROUND

¶5 The following relevant facts are not in dispute.

¶6 A. Underlying Wrongful Death Case

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¶7 In the summer 2016, Crowley-Sheppard Asphalt, Inc. (Crowley-Sheppard), an underlying

defendant, was the general contractor of a street rehabilitation project located near 87th Street

and Latrobe Avenue in the Village of Burbank, Illinois. Crowley-Sheppard subcontracted some

of the work, namely excavating and concrete services, to Davis Concrete. Pursuant to their

contract, Davis Concrete agreed to maintain a liability policy and to name Crowley-Sheppard as

an additional insured under the policy.

¶8 Thereafter, Davis Concrete subcontracted some of its work to RJ&R Trucking and

Excavating, Inc. (RJ&R), another underlying defendant. Under their contract, RJ&R agreed to

haul debris and to provide dump trucks for the rehabilitation project. RJ&R also agreed to carry

liability insurance “against claims for injuries or death of persons and damage to property,

arising directly or indirectly from the operations under [their] Agreement and/or the Construction

Contract, whether such injuries, death or damage resulted from any act or neglect of [RJ&R] or

any other person directly or indirectly employed by [RJ&R].” More specifically, their contract

called for RJ&R to carry the following types of coverage and limits of liability:

“B. Commercial General Liability Insurance on an occurrence basis with a

combined bodily injury and property damage limit of at least $1,000,000 per occurrence,

and $2,000,000 per project aggregate, or such greater sum as may be reasonable required

by [David Concrete].

***

a. Additionally Insured Status: The above policy shall include an

endorsement identifying Davis Concrete Construction Co. as the Additional

Insured for Ongoing Operations and Products/Completed Operations *** and

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must be on a primary/non-contributory basis. The General Aggregate limit shall

apply separately to each project.

***

C. Commercial Automobile Liability Insurance covering use of all owned, non-

owned and hired vehicles with Bodily Injury and Property Damage limit of at least

$1,000,000 Combined Single Limit, or such greater sum as required by the Contract.

D. Excess or Umbrella Liability Insurance in the amount of $3,000,000 per

occurrence and in the aggregate, or such greater sum as may be reasonably required by

the Contractor. This policy shall be a follow form policy and shall be excess over

coverages A, B, and C above.”

¶9 On June 3, 2016, Eugene Caruso, an RJ&R employee, was driving a dump truck

westbound on 87th Street in Burbank on his way back to Davis Concrete’s construction site. As

Caruso turned northbound onto Latrobe Avenue, he struck 13-year-old Brian Schrader (Brian),

who was crossing the street on a bicycle. Brian died from his injuries later that day.

¶ 10 At the time of the accident, RJ&R was covered under an automobile liability policy

issued by State Farm Mutual Automobile Insurance Company with a coverage limit of $1 million

for bodily injury and property damage. RJ&R was also covered under a commercial liability

umbrella policy (also referred to as a CLUP) and a businessowners policy (also known as and

hereafter referred to as a CGL policy) issued by State Farm with coverage limits of $2 million

and $1 million, respectively, for bodily injury and property damage. The CGL policy included,

as relevant here, a motor vehicle exclusion that stated:

“SECTION II—EXCLUSIONS

Applicable to Coverage L-Business Liability, this insurance does not apply to:

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8. Aircraft, Auto or Watercraft

‘Bodily injury’ or ‘property damage’ arising out of the ownership,

maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft

owned or operated by or rented or loaned to any insured. Use also includes

operation and ‘loading or unloading.’

This exclusion applies even if the claims allege negligence or other

wrongdoing in the supervision, hiring, employment, training or monitoring of

others by an insured, if the ‘occurrence’ which caused the ‘bodily injury’ or

‘property damage’ involved the ownership, maintenance, use or entrustment to

others of any aircraft, ‘auto’ or watercraft that is owned or operated by or rented

or loaned to any insured.”

¶ 11 On February 14, 2017, Brian’s mother, Melissa Schrader (Melissa), filed, as special

administrator of Brian’s estate, the underlying wrongful death action against RJ&R, Caruso,

Crowley-Sheppard, and Work Zone Safety, Inc., the contractor responsible for providing traffic

control services on the construction project, and eventually Davis Concrete (as will be discussed

below).

¶ 12 About a month later, Crowley-Sheppard tendered its defense to Davis Concrete and

Nationwide (Davis Concrete’s primary insurer). Nationwide did not accept the tender; instead, it

sent the tender to State Farm (RJ&R’s insurer). State Farm accepted Crowley-Sheppard’s tender

without any reservation of rights, even though there was no contract between Crowley-Sheppard

and RJ&R. Meanwhile, Melissa amended her negligence complaint to add a wrongful death

claim against Davis Concrete. She alleged, as relevant here, that Davis Concrete “was negligent

in one or more of the following respects:

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a. Failed to take adequate precautionary measures to ensure public safety,

including use of a flagman at the aforesaid intersection;

b. Permitted and allowed an oversized dump truck to turn into the wrong lane

on a residential street; and

c. Permitted and allowed a dump truck on a street in excess of the allowable

weight for that street.”

Davis Concrete tendered its defense of those claims to RJ&R and State Farm. Davis Concrete

subsequently sent State Farm three written requests for a response to its tendered defense. As a

trial date approached in the underlying litigation, the circuit court ordered State Farm to provide

a written response to Davis Concrete’s tender. Yet, State Farm failed to do so.

¶ 13 Ultimately, Melissa and the underlying defendants settled the wrongful death suit for $3.5

million (Schrader settlement). Pursuant to the terms of their agreement, State Farm, on behalf of

RJ&R, contributed $3 million to the settlement, exhausting the coverage limits under the

automobile policy and the CLUP. Crowley-Sheppard’s liability insurer contributed $100,000 to

the Schrader settlement, while Nationwide, on behalf of Davis Concrete, contributed $400,000 to

it.

¶ 14 B. Declaratory Judgment Action

¶ 15 Nationwide filed the instant declaratory judgment action against RJ&R and State Farm on

January 8, 2018. The next year, Davis Concrete informed State Farm of the settlement and

demanded that it pay Davis Concrete’s legal defense fees and costs and that it fund the $400,000

Schrader settlement amount that Nationwide contributed on behalf of Davis Concrete. State

Farm did not respond to Davis Concrete’s demands, leading the circuit court to order State Farm

to provide a written response to them by April 8, 2019. State Farm then responded that it would

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pay Davis Concrete’s reasonable attorney fees and legal costs but did not respond to Davis

Concrete’s demand for indemnity as to the Schrader settlement amount. Consequently,

Nationwide, as Davis Concrete’s subrogee, filed, as relevant here, a fourth amended complaint

against RJ&R and State Farm, seeking indemnity for the $400,000 settlement amount. We note

that at this point, State Farm had reimbursed Nationwide for the attorney fees and legal costs it

incurred in defending against the underlying litigation.

¶ 16 On January 21, 2020, State Farm filed an answer to Nationwide’s complaint, denying that

it owed Davis Concrete any obligation to fund the Schrader settlement. State Farm also filed, for

the first time, a multi-count counterclaim seeking a declaratory judgment that no coverage was

triggered under the CGL policy. Specifically, State Farm asserted that it had exhausted the

coverage limits under the automobile policy and the CLUP and that it owed Davis Concrete no

duty to defend or indemnify under the CGL policy because the allegations set forth in the

underlying complaint were excluded by the policy’s automotive exclusion.

¶ 17 The parties eventually filed cross-motions for summary judgment. Nationwide argued

that the CGL policy’s automotive exclusion did not apply because the underlying complaint

alleged non-automobile-related conduct, namely, that Davis Concrete was negligent because it

“[f]ailed to take adequate precautionary measures to ensure public safety, including use of a

flagman at the aforesaid intersection.” Nationwide further argued that State Farm was equitably

estopped from asserting any policy defenses to coverage based on State Farm’s failure to defend

Davis Concrete in the underlying suit and its unreasonable delay in providing a written response

to Davis Concrete’s tender that effectively forced Davis Concrete to settle the underlying matter.

State Farm, on the other hand, argued that there was no duty to defend because the underlying

allegations were all related to automobile use, thereby triggering application of the CGL policy’s

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automotive exclusion. Additionally, State Farm sought reimbursement from Nationwide for costs

associated with its underlying defense of Crowley-Sheppard.

¶ 18 The circuit court ultimately concluded that the allegations in the underlying complaint

were precluded by the CGL policy’s automotive exclusion; thus, State Farm had no duty to

defend or indemnify Nationwide, as the subrogee of Davis Concrete. Because there was no duty

to defend, the court concluded that estoppel did not apply. Finally, the court denied State Farm’s

reimbursement request as to Crowley-Sheppard’s defense costs. The court entered its order on

February 16, 2021, granting in part and denying in part the parties’ cross-motions for summary

judgment. This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 As stated, Nationwide contends that the circuit court erroneously granted summary

judgment to State Farm in this case because it had a duty to defend Davis Concrete since the

underlying complaint alleged facts concerning Davis Concrete’s negligence that were within, or

potentially within, the CGL policy’s coverage. In addition, Nationwide contends that State Farm

was equitably estopped from raising any policy defenses to coverage because it failed to either

defend the underlying suit under a reservation of rights or timely seek a declaratory judgment

that it owed no coverage to Davis Concrete.

¶ 21 Construction of an insurance policy and a determination of the parties’ rights under the

policy are questions of law properly disposed of by way of summary judgment. Zdeb v. Allstate

Insurance Co.,

(2010). Summary judgment is appropriate when no

genuine issue of material fact exists such that the movant is entitled to judgment as a matter of

law. Steadfast Insurance Co. v. Caremark Rx, Inc.,

(2005). Where, as

here, the parties file cross-motions for summary judgment, they concede the absence of a

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genuine issue of material fact and invite the court to decide the questions presented as a matter of

law. Id.; Daniel v. Aon Corp.,

; Illinois Emcasco Insurance Co. v.

Tufano,

. Thus, the sole issue before this court is whether State

Farm was entitled to judgment as a matter of law, and as with all questions of law, our review is

de novo. Steadfast Insurance Co.,

; Daniel,

.

¶ 22 A. Duty to Defend

¶ 23 It is well settled that an insurer’s duty to defend and its duty to indemnify its insured are

separate and distinct duties. Fremont Casualty Insurance Co. v. Ace-Chicago Great Dane Corp.,

(2000). Because an insurer’s duty to indemnify its insured cannot exist in

the absence of a duty to defend, we must first determine whether State Farm had a duty to defend

Davis Concrete against the underlying negligence action, and whether State Farm breached that

duty by failing to do so.

.

¶ 24 In a declaratory judgment action concerning an insurer’s duty to defend, a court compares

the factual allegations of the underlying complaint to the language of the relevant coverage

provisions of the insurance policy. Pekin Insurance Co. v. Wilson,

(2010);

Outboard Marine Corp. v. Liberty Mutual Insurance Co.,

(1992); Acuity

Insurance Co. v. 950 West Huron Condominium Ass’n,

, ¶ 24. If the

underlying complaint alleged facts within, or potentially within the policy’s coverage, the

insurer’s duty to defend is triggered even if the allegations are groundless, false, or fraudulent.

Northbrook Property & Casualty Co. v. Transportation Joint Agreement,

(2000); Wilson,

; Outboard Marine Corp.,

; 950 West Huron

Condominium Ass’n,

, ¶ 24. Additionally, the allegations of the

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underlying complaint must be liberally construed in favor of the insured, resolving any doubt or

ambiguity about coverage against the insurer. 950 West Huron Condominium Ass’n,

, ¶ 24. In other words, an insurer may not justifiably refuse to defend an action

brought against its insured unless it is clear from the face of the underlying complaint that the

factual allegations pled do not fall within, or potentially within, the policy’s coverage.

Northbrook Property & Casualty Co.,

.

¶ 25 In addition, because an insurance policy is a contract, we apply general rules of contract

interpretation. Founders Insurance Co. v. Munoz,

(2010); First Mercury

Insurance Co. v. Nationwide Security Services, Inc.,

. A court’s

primary objective in construing a contract is to ascertain and give effect to the parties’ intentions

as expressed through the contract’s language. Thompson v. Gordon,

(2011).

If the words employed in the contract are clear and unambiguous, they must be given their plain,

ordinary, and popular meaning.

Provisions in an insurance policy excluding or limiting

coverage, however, will be read narrowly, and the applicability of the exclusion must be clear

and free from doubt. Gillen v. State Farm Mutual Automobile Insurance Co.,

(2005); Empire Indemnity Insurance Co. v. Chicago Province of the Society of Jesus,

. Finally, the insurer bears the burden of affirmatively

demonstrating that a claim falls within an exclusion. American Zurich Insurance Co. v. Wilcox &

Christopoulos, L.L.C.,

; Continental Casualty Co. v. McDowell

& Colantoni, Ltd.,

(1996).

¶ 26 Nationwide argues that the automotive exclusion in State Farm’s CGL policy did not

apply in this case because the underlying negligence complaint alleged facts separate from the

operation of a motor vehicle that were within, or potentially within the policy’s coverage,

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thereby triggering a duty to defend. Specifically, Nationwide points to the underlying allegation

that Davis Concrete was negligent because it “[f]ailed to take adequate precautionary measures

to ensure public safety, including use of a flagman at the aforesaid intersection.” State Farm

disagrees, arguing that the automotive exclusion unambiguously applied because the liability

asserted in the underlying action clearly arose out of the operation of the dump truck that fatally

struck Brian; thus, it owed Davis Concrete no duty to defend.

¶ 27 We agree with Nationwide that the underlying complaint alleged facts outside of the

automotive exclusion that fell within, or potentially within, the CGL policy’s coverage. As set

forth above, Melissa’s complaint alleged that Davis Concrete was negligent because it “[f]ailed

to take adequate precautionary measures to ensure public safety, including use of a flagman at

the aforesaid intersection.” This allegation is separate and distinct from Melissa’s other

allegations concerning Davis Concrete’s negligent operation and/or monitoring of the dump

truck, which stated that Davis Concrete was negligent because it “[p]ermitted and allowed an

oversized dump truck to turn into the wrong lane on a residential street” and “[p]ermitted and

allowed a dump truck on a street in excess of the allowable weight for that street.”

¶ 28 We note that at oral argument before this court, counsel for State Farm argued that the

public safety allegation was not separate and distinct from the other two allegations of

negligence, which clearly fell within the automotive exclusion, because it was a conjunctive

allegation. Counsel argued that because all three allegations were asserted under the same

negligence count in the underlying complaint, they had to be read in conjunction with one

another. We disagree. Melissa’s complaint expressly stated that Davis Concrete “was negligent

in one or more of the following respects” (emphasis added) before setting forth the three

allegations. This language is consistent with the language found in the standard issues Illinois

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Pattern Jury Instruction, Civil, No. 20.01 (2011) for negligence, which states: “[t]he plaintiff

claims that he was injured and sustained damage, and that the defendant[s] [was] [were]

negligent in one or more of the following respects.” (Emphasis added.) Thus, a jury need not

find that a defendant was negligent based on every allegation asserted by a plaintiff; it may find

that only one allegation of negligence was satisfied. Likewise, here, a jury could have found that

Davis Concrete was negligent because it failed to ensure that public safety measures were in

place near the construction site without necessarily finding that Davis Concrete was also

negligent due to its operation of the dump truck.

¶ 29 In any event, the public safety allegation is not encompassed by the plain language of the

automotive exclusion. By its own terms, the exclusion applied to bodily injury and property

damage “arising out of the ownership, maintenance, use or entrustment to others of any aircraft,

‘auto’ or watercraft owned or operated by or rented or loaned to any insured.” The exclusion also

applied “if the claims allege[d] negligence or other wrongdoing in the supervision, hiring,

employment, training or monitoring of others by an insured, if the ‘occurrence’ which caused the

‘bodily injury’ or ‘property damage’ involved the ownership, maintenance, use or entrustment to

others of any *** ‘auto’ *** that is owned or operated by or rented or loaned to any insured.”

Here, it is undisputed that Davis Concrete did not own or operate the dump truck that struck and

ultimately killed Brian. Moreover, the public safety allegation did not set forth any facts

involving Davis Concrete’s “supervision, hiring, employment, training or monitoring” of Caruso

or any other RJ&R employees. While State Farm claims that ensuring public safety at the

intersection “require[d] the ‘monitoring of others,’ ” it has not developed any legal argument or

cited any authority demonstrating that safeguarding the public is categorically limited to the

“monitoring of others.”

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¶ 30 State Farm, nonetheless, asserts that no duty to defend was triggered because the public

safety allegation did not allege negligence “wholly independent of the operation of the [dump]

truck,” relying on Northbrook Property & Casualty Co.,

. We find Northbrook

distinguishable. In Northbrook, a Metra train collided with a school bus operated by various

school districts, killing several students and injuring many others. The students’ underlying

negligence complaints alleged, among other things, that the school districts “inadequately

planned and inspected bus routes or failed to warn bus drivers of potential hazards along the

routes.”

. The insurance company later sought a declaration that it had no duty to defend

the school districts against the students’ lawsuits since the injuries arose out of the use or

operation of a bus and were therefore excluded under the policy’s automotive exclusion.

. The supreme court ultimately agreed, concluding that the allegations in the complaint were

“nothing more than rephrasings of the fact that the students’ injuries arose from the school

districts’ use or operation of a motion vehicle” and that the “policy exclude[d] injuries arising

from the school districts’ use or operation of a motor vehicle.”

.

¶ 31 Unlike the underlying complaints in Northbrook, the underlying negligence complaint

here included a public safety allegation that asserted Brian’s death arose from a cause entirely

independent of a motor vehicle. As stated, the complaint alleged that Davis Concrete was

negligent because it “[f]ailed to take adequate precautionary measures to ensure public safety,

including use of a flagman at the aforesaid intersection.” This did not allege any facts concerning

the dump truck or any other motor vehicle; rather, the public safety allegation provided an

alternative potential cause of Brian’s death, i.e., Davis Concrete’s failure to ensure adequate

safety measures were in place for public individuals, like bikers and pedestrians, who

encountered the construction area. Stated differently, a potential cause of Brian’s death could

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have been that there was no flagman present near the construction area to help him safely cross

the street, a cause that had nothing to do with the dump truck and that was within, or potentially

within, the CGL policy’s coverage. See United States Fidelity & Guaranty Co. v. State Farm

Mutual Automobile Insurance Co.,

(1987) (stating, “[i]f a proximate

cause of an injury is within the included coverage of an insurance policy, the included coverage

is not voided merely because an additional proximate cause of the injury is a cause which is

excluded under the policy”).

¶ 32 Furthermore, in Northbrook, the underlying allegations of negligence all mentioned a

motor vehicle, i.e., the word “bus.” And the students’ alleged injuries could not have occurred

absent the school districts’ operation of the bus. Contrarily, here, Brian could have been injured

by something entirely other than a motor vehicle as a result of Davis Concrete’s failure to ensure

public safety measures were in place, including the use of a flagman, around the construction

site. For example, Brian could have ridden his bike into a construction ditch or other hazardous

materials near the site, sustaining injuries. Thus, we cannot say the public safety allegation was

simply another way of saying that Brian’s death was caused by the dump truck particularly when

the allegation itself did not even mention the dump truck or anything related to the truck. Cf.

Allstate Insurance Co. v. Pruitt,

(1988) (where the allegations of

negligence were based solely on the minor’s “use and operation of the minibike,” the court held

that the insurance policy’s motor vehicle exclusion applied).

¶ 33 In Louis Marsch, Inc. v. Pekin Insurance Co.,

(1985), the Appellate

Court, Fifth District, reached a similar conclusion. There, a boy was injured after being struck by

a dump trump owned by Louis Marsch, Inc. The underlying complaint filed by the boy’s father

asserted a negligent hiring claim against Marsch alleging that it “failed to employ the proper

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number and placement of flagmen while the roadwork was taking place, and failed to mark a

closed portion of the road with suitable warning signs or barricades.”

. The Marsch

court ultimately found that a duty to defend was triggered because those allegations were not

precluded by an automotive exclusion, similar to the one here, in the insurance policy, stating

“[t]here are a number of ways in which the minor Chizmar could have been injured as a result of

improper deployment of flagmen and warning devices, only one of which was being struck by a

motor vehicle. For example, Chizmar could have struck a worker, an excavation, or piled

materials.”

The court explained,

“if a trier of fact concluded that Marsch had failed in its duty to Chizmar under the Road

Construction Injuries Act, the fact that the dump truck was the instrumentality which

ultimately injured Chizmar would be but one of two concurrent causes of the injury, one

excluded under the [insurance] policy, the other not so excluded.”

The Marsch court then went a step further, stating, “[i]f the liability of an insured arises from

negligent acts which constitute non-auto-related conduct, the policy should be applicable

regardless of the automobile exclusion or the fact that an automobile was involved in the

occurrence.”

¶ 34 Similarly, here, there are many ways in which Brian could have been injured as result of

Davis Concrete’s alleged public safety failures at the construction site, and a trier of fact could

have reasonably concluded that the absence of a flagman was a cause of his death. Because the

underlying negligence complaint alleged facts outside of the CGL policy’s automotive exclusion

and within, or potentially within, the policy’s coverage, we conclude that State Farm’s duty to

defend was triggered and that State Farm breached its duty by not defending Davis Concrete in

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the underlying suit. We therefore reverse the portion of the lower court’s judgment holding there

was no duty to defend based on the CGL policy’s automotive exclusion.

¶ 35 B. Equitable Estoppel

¶ 36 We now turn to Nationwide’s claim that State Farm was equitably estopped from

asserting any policy defenses to coverage. Under the estoppel doctrine, an insurer which takes

the position that a complaint potentially alleging coverage is not covered under a policy that

includes a duty to defend may not simply refuse to defend the insured. Employers Insurance of

Wausau v. Ehlco Liquidating Trust,

(1999). Rather, the insurer must either

(1) defend the suit under a reservation of rights or (2) seek a declaratory judgment that there is no

coverage.

If the insurer takes neither action, and is later found to have wrongfully denied

coverage, the insurer will be estopped from raising any policy defenses to coverage, even if those

defenses would have been successful had the insurer not breached its duty to defend.

at 150-

51.

¶ 37 To prevent estoppel, an insurer’s claim for declaratory judgment must be timely filed.

Aetna Casualty & Surety Co. v. O’Rourke Bros., Inc.,

(2002). Where,

as here, an insurer waits to seek a declaratory judgment that there is no coverage until after the

underlying action has settled, the insurer’s declaratory judgment request is untimely as a matter

of law. Employers Insurance of Wausau,

. As set forth above, Davis Concrete

tendered its defenses to RJ&R and State Farm on August 6, 2018. State Farm neither defended

the suit under a reservation of rights nor sought a declaratory judgment that there was no

coverage. 1 And even though Nationwide had already filed the present declaratory judgment

action when the underlying suit settled, State Farm did not file its counterclaim in the declaratory

1 At oral argument before this court, State Farm admitted that it did not defend Davis Concrete in the underlying suit under a reservation of rights. - 16 - No. 1-21-0267

action until almost a year after the parties settled the matter. State Farm’s actions clearly were

untimely as a matter of law. Furthermore, State Farm has offered no explanation for its

untimeliness in seeking a declaratory judgment that it owed no coverage to Davis Concrete or

why it failed to respond to Davis Concrete’s tender, despite a number of court orders requiring it

to do so. State Farm’s arguments on appeal that it was not estopped from denying coverage all

rest on the assumption that no duty to defend was triggered; State has not provided any legal

argument that estoppel does not apply even if a duty to defend was triggered, as was the case

here.

¶ 38 Based on the foregoing, we conclude that State Farm was estopped from asserting any

policy defenses to coverage; we therefore reverse the portion of the lower court’s judgment

holding that estoppel did not apply in this case. Because the parties have not advanced, nor have

we found any disputed facts concerning the amount of coverage State Farm owed to Davis

Concrete, we conclude that Nationwide, as Davis Concrete’s subrogee, is entitled to indemnity

for the $400,000 it contributed to the Schrader settlement on Davis Concrete’s behalf. We thus

remand this matter to the circuit court to enter judgment in favor of Nationwide on its claim for

indemnity in the amount of $400,000, and to determine and award Nationwide reasonable

attorney fees and legal costs in connection with this litigation.

¶ 39 III. CONCLUSION

¶ 40 State Farm had a duty to defend Davis Concrete because facts in Melissa’s underlying

negligence complaint fell within, or potentially within, the CGL policy’s coverage. The record

shows that State Farm breached its duty by not defending Davis Concrete in the underlying suit.

Additionally, State Farm was estopped from asserting any policy defenses to coverage because it

failed to either defend the suit under a reservation of rights or timely seek a declaratory judgment

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that it owed no coverage. Finally, Nationwide was entitled to indemnification in the amount of

$400,000, since coverage was triggered under State Farm’s CGL policy and the parties have not

disputed that Nationwide was entitled to that amount.

¶ 41 For the foregoing reasons, we reverse the circuit court’s judgment that State Farm owed

Davis Concrete no duty to defend and that Nationwide was not entitled to indemnification.

Additionally, we reverse the court’s judgment that estoppel did not apply in this case. We affirm

all other aspects of the circuit court’s judgment and remand for further proceedings consistent

with this decision.

¶ 42 Affirmed in part and reversed in part; cause remanded.

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No. 1-21-0267

Cite as: Nationwide Property & Casualty Insurance Co. v. State Farm Fire & Casualty Co.,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2018-CH-226; the Hon. David B. Atkins, Judge, presiding.

Attorneys David E. Kawala, Catherine Basque Weiler, and T. Allon Renfro, for of Swanson, Martin & Bell, LLP, of Chicago, for appellant. Appellant:

Attorneys Rosa M. Tumialán, of Burke Warren MacKay & Serritella, P.C., for of Chicago, for appellee. Appellee:

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