The court determined there were sufficient allegations in the underlying complaint and third party complaints to raise a duty to defend for the additional insured. Ill. Emcasco Ins. Co. v. Waukegan Steel Sales, 2013 Ill. App. LEXIS 624 (Ill. Ct. App. Sept. 13, 2013).

   Waukegan was named as an additional insured under subcontractor I-MAXX Metalworks, Inc.'s policy with Emcasco. An employee of I-MAXX, John Walls, was injured on the job site and sued Waukegan. The complaint alleged Waukegan was negligent in failing to property manage, operate and maintain the premises. 

   I-MAXX had a policy with Emcasco which named Waukegan as an additional insured. The coverage was limited, however, to the additional insured's vicarious liability as a result of the insured's conduct. 

   Emcasco refused to defend Waukegan because the allegations of direct negligence against Waukegan were excluded by the vicariously liability provision. 

   Walls sued two other companies involved in the construction project, both of which filed third-party complaints against I-MAXX, alleging its negligence was the cause or contributed to Walls' injuries. Waukegan was not named as a party in these third-party complaints. 

   The trial court granted summary judgment to Waukegan, concluding that a duty to defend could be derived from the third-party complaints since they alleged direct negligence on the part of I-MAXX.

   On appeal, the Court of Appeals noted it was not restricted to the the allegations in Walls' complaint to determine whether there was a duty to defend. The court could also review the contract and third-party complaints.

    Reading Wall's complaint in conjunction with the third-party complaints demonstrated the potential for vicarious liability on the party of Waukegan. Walls alleged that Waukegan, "by and through its agents, servants and employees," was negligent. It then listed 12 allegations of negligence against Waukegan. The third-party complaints repeated the 12 allegations of negligence in seeking contribution from I-MAXX. Therefore, I-MAXX could have been one of the "agents, servants and employees" of Waukegan, which would expose Waukegan to vicarious liability. Consequently,the trial court correctly determined that Emcasco had a duty to defend Waukegan.