The issue in Pekin Ins. Co. v. Roszak/ADC. LLC, 2010 Ill. App. LEXIS 635 (Ill. Ct. App. June 25, 2010) was whether a duty to defend was owed to the additional insured when the underlying complaint did not allege any negligence by the named insured.

   An employee of Area Erectors, a subcontractor of the general contractor, Roszak, was injured at the construction site.  The employee sued Roszak and another subcontractor, Rockford Ornamental.  The complaint alleged Roszak participated in coordinating the work done at the site, but failed to reasonably inspect, supervise and control the work.  A second count based on premises liability alleged that Roszak controlled the construction site.  Both counts further alleged that as a direct and proximate result of Roszak's negligence, the plaintiff was injured. 

   The contract between Roszak and its subcontractor, Rockford, required Rockford to add Roszak as an additional insured to its CGL policy.  An endorsement to the policy identified an insured as any organization for whom the insured was performing operations.  However, the organization was an additional insured only with respect to liability incurred solely as a result of some act and or omission of the named insured and not for its own independent negligence.

   Roszak tendered the complaint to Rockford's insurer, Pekin Insurance.  Based on the endorsement, Pekin declined the tender from Roszak and refused to defend.  When Roszak sued for a declaratory judgment, Roszak argued that the underlying complaint raised the possibility of coverage and thus Pekin owed a defense.  The trial court denied Pekin's motion for summary judgment, but granted Roszak's motion for summary judgment on the duty to defend.

   The appellate court reversed.  The additional insured endorsement did not cover either count because direct allegations of negligence on the part of the additional insured was not the "result of some act or omission of the named insured."  Instead, the complaint alleged that the injury was caused by the additional insured's own independent negligence. 

   The court next assumed that Rockford was an independent contract of Roszak in the event the underlying complaint alleged negligence by Rockford.  Yet, even with this assumption, there was no duty to defend because nothing in the underlying complaint indicated Roszak retained sufficient control over the details of Rockford's work so as to be vicariously liable for the acts or omissions of Rockford.