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Home Insurance Company v. United States Fidelity and Guaranty Company8/14/2001
UNPUBLISHED
This appeal arises from a declaratory judgment action filed by plaintiff-appellant, the Home Insurance Company (Home). In the trial court, Home, among other things, sought a declaration that defendant-appellee, United States Fidelity and Guaranty Company (USF&G;, had a duty to defend Prestress Engineering Corporation (PEC) in a wrongful death action. The action, Pavesich v. Prestress (the underlying action), was filed in the circuit court of Cook County on June 21, 1993. USF&G;moved to dismiss Home's declaratory judgment complaint. Based upon an agreed order, USF&G;voluntarily withdrew its motion to dismiss and Home filed an amended declaratory judgment complaint. USF&G;answered Home's amended complaint raising two affirmative defenses, the defense of late tender and a breach of the cooperation clause in the USF&G;insurance policy. Home filed a motion to strike the affirmative defenses, which was denied by the trial court on June 10, 1998. On July 7, 1998, Home filed a second amended complaint for declaratory judgment, which was answered by USF&G;accompanied by the same two affirmative defenses referred to above. Home moved for summary judgment on counts V and VI of its second amended complaint on December 21, 1998. USF&G;responded by filing its own cross-motion for summary judgment which, by stipulation, sought only a declaration that USF&G;had no duty to defend PEC. On June 28, 1999, the trial court found that USF&G;had no duty to defend PEC in the underlying action. Thus, USF&G;s cross-motion for summary judgment was granted and Home's motion for summary judgment was denied. Home appeals the orders entered by the trial court on June 10, 1998, and on June 28, 1999.
The threshold question to be decided on appeal is whether the trial court erred in granting USF&G;s cross-motion for summary judgment and in denying Home's motion for summary judgment on the basis that USF&G;had no duty to defend PEC in the underlying action. The other question posed by this appeal is whether the trial court properly denied Home's motion to strike USF&G;s affirmative defenses.
Our standard of review for summary judgment is de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113-14, 649 N.E.2d 1323 (1995). With this standard in place, we set out those facts that are relevant in disposing of this appeal.
In the underlying action, a fourth amended complaint (underlying complaint) was filed by Michele Pavesich, independent administrator of the estate of Gregory Pavesich, deceased, on March 11, 1997. The underlying complaint alleged that Mellon-Stuart Construction, Inc. (Mellon), was the general contractor for reconstructing the Bensenville Bridge, which is located over Interstate 294, pursuant to a contract with the Illinois State Toll Highway Authority. Mellon allegedly entered into an agreement with PEC whereby PEC would manufacture and deliver prestressed precast concrete beams for use in reconstructing the Bensenville Bridge.
PEC allegedly contracted with A&M;Cartage of Tinley Park, Inc. (A&M;, "and/or" Tri Sons Transportation, Inc. (Tri Sons), where A&M;"and/or" Tri Sons was to provide drivers with tractors to haul the concrete beams from the PEC plant to the Bensenville Bridge jobsite. It was further alleged that A&M;"and/or" Tri Sons contracted with Transmedical, Inc. (Transmedical), where Transmedical was to supply the drivers who would haul the beams from PEC's facility to the bridge project.
Pavesich was a semi tractor-trailer operator employed by Transmedical. On May 21, 1992, he was killed when a 96,000-pound concrete beam he was hauling dislodged fr
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