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FOURTH DIVISION
December 4, 2003

No. 1-02-2826

Defendants James McHugh Construction Co. and James McHugh Development Co.(collectively, McHugh) sought insurance coverage with plaintiff American Country Insurance Co.(American) for a bodily injury claim and lawsuit filed by Michael Marciano against McHugh for itsalleged negligence. McHugh was the general contractor on a construction project and SpectrumStone (Spectrum) was a subcontractor and Marciano's employer. Marciano was injured as aresult of his employment. As a condition of the contract between McHugh and Spectrum,McHugh was added as an additional party insured, subject to certain conditions, on the Americanliability policy issued to Spectrum. American denied coverage for McHugh with reference to theMarciano claim.

American filed a complaint for declaratory relief and judgment against McHugh, assertingthat it had no duty to defend or indemnify McHugh in the Marciano lawsuit. McHugh answeredthe complaint and filed its own request for declaratory relief. The parties then filed cross-motionsfor summary judgment, and McHugh filed its first "motion for turnover." That motion soughtcompensation for the period of time that McHugh alleges American "acknowledged the claim andagreed to 'handle this claim' and lawsuit,' " before American filed its complaint for declaratoryrelief. The trial court "entered and continued" McHugh's request for payment of defense expensesas listed in the court's "motion for turnover order."

Eventually, the trial court granted American's motion for summary judgment and deniedMcHugh's motion for summary judgment. However, the court did not rule on McHugh's "motionfor turnover." Thereafter, McHugh filed a "second motion for turnover," which again soughtpayment of defense expenses for the period of time after which American allegedly acknowledgedthe underlying claim and lawsuit. The trial court denied the second motion for payment ofdefense expenses, and defendants appealed.

After McHugh's appeal was docketed in this court, but before it filed its brief, Americanmoved to dismiss the appeal. It argued that McHugh's postjudgment trial proceedings -namely,the second motion for turnover- did not qualify as a postjudgment motion under section 2-1203Code of Civil Procedure (the Code) (735 ILCS 5/2-1203 (West 2000)) and, therefore, could nottoll the 30-day time limit found in Supreme Court Rule 303(a)(1) for filing a timely appeal. See155 Ill. 2d R. 303(a)(1). Plaintiff asserted that because McHugh's notice of appeal was untimelyit could not confer jurisdiction upon this court. McHugh answered the plaintiff's motion, andplaintiff replied. Upon review, a motion panel of this court ordered that plaintiff's dismissalmotion be taken with the case. For the reasons that follow, we deny plaintiff's motion fordismissal and affirm the trial court's decision.

By way of background, we note that McHugh's responsibility as a general contractor is tocontrol the project schedule and insure that the structure complies with the project specifications. However, McHugh is not involved in the work performed by employees of subcontractors, as thesubcontractors are ultimately responsible for the "means and methods" of their employees' workas well their safety.

We are also aware that the Illinois Workers' Compensation Act (820 ILCS 305/5(a) (West2000)) bars injured workers from suing their own employers. Consequently, because injuredconstruction workers cannot sue their subcontractor employers, it is common practice for them tosue the general contractor involved with the project. In realization of that possibility, generalcontractors will usually set up insurance requirements for their subcontractors, with the intent ofpassing the liability for worker injuries along to the worker's employer's insurance carrier.

In the present case, for example, McHugh claims that, as part of its contract, it required itssubcontractors to provide it with insurance coverage for claims against it that arise out of thesubcontractor's work. In particular, the McHugh-Spectrum subcontract provided:

"Each of the aforesaid policies shall name [McHugh] and such other partiesdesignated on Schedule B as additional insured parties and provide that it isprimary to any general liability insurance maintained by Contractor or any otheradditional insured party***.

* * *

Subcontractor shall cause James McHugh Construction Co. *** to beincluded as Additional Insureds under Subcontractor's General Liability policy andUmbrella policy, if any, Coverage shall be primary for the benefit of the AdditionalInsureds."

To that end, American issued a certificate of insurance adding McHugh as an additionalinsured under the policy. That certificate provided in pertinent part:

"This is to certify that the policies of insurance listed below have been issued to theinsured named above for the policy period indicated. Notwithstanding anyrequirement, term or condition of any contract or other document with respect towhich this certificate may be issued or may pertain, the insurance afforded by thepolicies described herein is subject to all the terms, exclusions, and conditions ofsuch policies. Limits shown may have been reduced by paid claims."

The policy also contains an endorsement form 2030M, which in relevant part provides:

"The insurance provided to additional insureds is limited as follows:

(1) The person or organization is an additional insured but only withrespect to your acts or omissions in connection with 'your work' for that additionalinsured by you or on your behalf at the location designated in the agreement anddesignated in a Certificate of Insurance issued by our authorized producer.

(2) Additional exclusions. This insurance does not apply to:

* * *

(c) 'Bodily Injury' or 'property damage' arising out of anyact or omission of the additional insured(s) or any of theiremployees."

The defendants in the present case assert that it is this policy endorsement that gives plaintiff theduty to defend or indemnify the underlying defendants named in that action.

In the underlying action, Marciano's complaint asserts that McHugh constructed orerected a scaffolding from which Marciano fell, and that McHugh failed to: (1) inspect, manageand supervise the jobsite; (2) warn Marciano of dangerous conditions; or (3) provide adequatesafeguards to prevent Marciano's injury. Each one of these allegations, Marciano claimed,proximately caused his injuries. However, Marciano's employer, Spectrum, was not a nameddefendant and was never joined as a third-party defendant. Accordingly, no acts or omissions onthe part of Spectrum were alleged to have caused Marciano's injuries.

After McHugh was served with a summons in the Marciano lawsuit, it tendered thedefense to American as an additional insured under Spectrum's policy. On November 6, 2000,American responded in writing to McHugh's tender and accepted the tender under a fullreservation of rights. However, the letter also noted that the policy issued to Spectrum containedendorsement AC 2038M, which states in pertinent part:

"The following is added to paragraph 2c of 'Duties In The Event of Occurrence,Claim or Suit' of the 'SECTION IV COMMERCIAL GENERAL LIABILITYCONDITIONS':

* * *

(6) Promptly tender the defense of any claim made or 'Suit' to any otherInsurer which also has available insurance for a loss which we cover underCoverage A or B of this coverage part."

Based on that endorsement, American requested that McHugh tender the defense of the Marcianolawsuit to its own insurer and provide American a copy of the policy. American allegedly advisedMcHugh that McHugh's compliance with its request was a condition precedent to coverage andthat American would take no further action until McHugh complied.

On November 10, 2000, McHugh sent a letter to American that stated: "McHugh refusesto tender this matter to any insurer other than American Country." McHugh stated that in light oftwo Illinois decisions, John Burns Construction Co. v. Indiana Insurance Co., 189 Ill. 2d 570(2000), and Institute of London Underwriters v. Hartford Fire Insurance Co., 234 Ill. App. 3d 70(1992), and the absence of mention of the tender requirement in the certificate of insurance issuedto McHugh, American could not put its financial interest ahead of McHugh to require a tender.

After receiving McHugh's November 10, 2000, letter, American commenced thisdeclaratory judgment action. The complaint sought a judicial determination that American had noduty to defend McHugh in the Marciano action because: (1) endorsement form 2030M excludedcoverage for McHugh's own negligent acts or omissions, and (2) McHugh repudiated its "tender-to-others" obligation under endorsement form AC 2038M. McHugh answered the complaint andcounterclaimed, arguing that (1) American still owed McHugh a defense in the Marciano lawsuit,and (2) the "tender-to-others" provision of form AC 2038M was invalid.

Thereafter, the parties filed cross-motions for summary judgment, and McHugh filed awritten motion entitled "motion for a turnover order." The impetus behind that motion was thatAmerican was obligated to pay McHugh's defense cost in the Marciano action from the time thatAmerican allegedly accepted McHugh's tender until the time American filed its declaratoryjudgment action. The trial court ordered the motion "entered and continued."

On June 17, 2002, the trial court heard arguments on the cross-motions for summaryjudgment and ruled in favor of American. The court's order stated:

"(1) Motion of McHugh Defendants denied.

(2) Motion of plaintiff is granted.

(3) Court adjudges and declares that Plaintiff has no duty to pay, defend, orindemnify McHugh Defendants for the alleged injurious occurrence of theMarciano complaint in [case number] 00 L 008245.

(4) Court declines to enter summary judgment for either party with respectto the 'duty to tender' provisions of the policy."

Ten days later, McHugh filed its "second motion for turnover order," which was a slightlymodified version of its previous "motion for turnover order" that had been "entered andcontinued."

On August 20, 2002, upon review of American's response to McHugh's second turnovermotion, the trial court denied it. In making its ruling, the trial court disagreed with American'sargument that the passage of time from June 17, 2002, to August 20, 2002, had divested the courtof jurisdiction to rule on the motion. On September 12, 2002, McHugh filed its notice of appeal.

We first address the motion taken with this case, which focuses on the same jurisdictionalissue posed to the trial court: whether McHugh's "second motion for turnover order" qualifies asa postjudgment motion under Code section 2-1203, thereby tolling the 30-day time limit found inSupreme Court Rule 303(a)(1) for filing a timely appeal. See 155 Ill. 2d R. 303(a)(1). For if itdoes not, defendants' notice of appeal is late and we have no jurisdiction to hear this appeal.

As this court has noted:

"Under Supreme Court Rule 303(a)(1), a notice of appeal must be filedwithin 30 days after the entry of the final judgment from which the appeal is taken,or, if a timely post-trial motion directed at the judgment is filed, within 30 daysafter entry of the order disposing of the last pending post-trial motion. 134 Ill. 2dR. 303(a)(1). Under section 2-1203 of the Illinois Code of Civil Procedure, apost-trial motion must be filed within 30 days of a final judgment. 735 ILCS5/2-1203 (West 1994). Otherwise, the trial court will lose jurisdiction to modifyor vacate the final order which it entered after the lapse of 30 days." Lajato v.AT&T, Inc., 283 Ill. App. 3d 126, 131 (1996).

Moreover, Code section 2-1203 provides that in a nonjury case, within 30 days after the entry ofjudgment, a party may file a motion for a rehearing, a retrial, a modification of the judgment, avacatur of the judgment, or other relief. 735 ILCS 5/2-1203 (West 2000). However, to be validand to extend the time for appeal, such a motion must be directed against the judgment and mustcontain specific grounds warranting relief such as reconsideration or vacatur. See Robertson v.Winnebago County Forest Preserve District, 301 Ill. App. 3d 520, 522-26 (1998).

In the present case, American notes that McHugh's counterclaim for declaratory reliefalleged that it was not required to tender the defense of the Marciano lawsuit to its own insurer. Further, American argues, the prayer for relief in McHugh's counterclaim "merely asks the [c]ourtto declare, construe, and adjudicate that the American Country policy affords full coverage to theMcHugh [d]efendants for their claim; that American Country has a full duty to defend theMcHugh [d]efendants with respect to the Marciano [l]awsuit; and that American Country has afull duty to indemnify the McHugh [d]efendants with respect to the Marciano claim." However,American notes, McHugh's counterclaim did not seek payment of its defense costs from the date ittendered the Marciano lawsuit to American until the date the judgment in that action was entered.

In addition, American asserts that the trial court's June 17, 2002, order granting summaryjudgment for American on its claim, and denying summary judgment for McHugh on itscounterclaim, was a final judgment because it disposed of the rights of the parties. Steinbrecher v.Steinbrecher, 197 Ill. 2d 514, 524 (2001). A "final judgment 'decides the controversies betweenthe parties on the merits and fixes their rights, so that, if the judgment is affirmed, nothing remainsfor the trial court to do but proceed with its execution.' In re J.N., 91 Ill. 2d 122, 127 (1982)." Steinbrecher, 197 Ill. 2d at 524. In other words, American asserts, where the trial court ruled onall of the issues listed in plaintiff's claim and defendants' counterclaim, its June 17, 2002, orderwas final and appealable as to those issues.

However, it was not until that final judgment was entered that McHugh filed its secondturnover motion which, American asserts, proceeded under the purportedly new theory thatMcHugh was entitled to defense costs from the date of tender of the Marciano lawsuit toAmerican until the date that judgment was entered. McHugh's reasoning in that motion was clear:the reservation of rights letter issued by American created rights for McHugh to receive interimcosts for the Marciano lawsuit during the pendency of the coverage case. Nevertheless, Americannotes, no such claim was contained or asserted in McHugh's counterclaim.

Accordingly, American argues that the second turnover motion was "nothing more than anattempt to amend the [c]ounterclaim to assert this theory," and did not seek a rehearing, retrial,vacation, or modification of the court's judgment, as provided by Code section 2-1203. See, e.g.,Vanderplow v. Krych, 332 Ill. App. 3d 51, 53 (2002) ("To qualify as a postjudgment motion, themotion must request at least one of the forms of relief specified in section 2-1203 of the Code ofCivil Procedure (735 ILCS 5/2-1203 (West 1998)), it must specify the grounds that wouldwarrant granting the relief requested, and it must be filed with the clerk. [Citation.]"). Americanalso asserts that the second turnover motion did not seek the "other relief" which the supremecourt has held must be "similar in nature" to the other forms of relief enumerated in Code section2-1203. See Fultz v. Haugan, 49 Ill. 2d 131, 135-36 (1971). As a result, American claims thatMcHugh's second turnover motion cannot operate to extend the 30-day limitations period of Rule303(a)(1) and that its notice of appeal was untimely in that it was filed more than 86 days afterJune 17, 2002 - the entry of final judgment. Thus, American concludes, we do not possess thejurisdiction to hear McHugh's appeal.

After reviewing McHugh's counterclaim, we agree with the plaintiff that McHugh neverspecifically delineated the time frame for which it was requesting payment of its defense costs. Instead, paragraphs 11 and 13 of the counterclaim state:

"11. That upon service in the underlying action, McHugh tendered itsdefense to [American] requesting a full defense and indemnification pursuant to theInstitute of London Underwriters v. Hartford Fire Ins[urance] Co. decisionallowing McHugh to choose one insurer and knowingly forgo another insurer'sparticipation in the defense of a claim. ***

13. That [American] has a duty to fully defense and indemnify McHugh inthe Marciano [action] as an additional insured under the [American] policy."

In the words of plaintiff, McHugh simply sought a declaration that American's policy afforded fullcoverage to it and that American had a full duty to defend and indemnify it with respect to theMarciano lawsuit.

That stated, however, we are not persuaded by plaintiff's attempt to severalize McHugh'slater, more specific request in its second motion for turnover for the interim costs of the Marcianolawsuit from McHugh's broader prayer for relief. Instead, we find that McHugh's counterclaimput the issue of payment of all past, present, and future fees and costs of the Marciano lawsuitbefore the trial court and that the trial court gave a final order as to that issue: "[The] Courtadjudges and declares that Plaintiff has no duty to pay, defend, or indemnify McHugh Defendantsfor the alleged injurious occurrence of the Marciano complaint in [case number] 00 L 008245." McHugh's second motion for turnover simply sought a modification of that judgment. It isapparent that McHugh filed that second motion for turnover because it believed the particularissue of its claim for the "interim" defense fees and costs had not been adjudicated and, therefore,that the trial court's June 17, 2002, order was not final. As noted, however, we agree with thetrial court's assessment that it entered a final order on June 17, 2002, on all of the motions beforeit, and that it simply found that plaintiff had no duty to pay, defend or indemnify the defendantswhatsoever in connection with the Marciano case. Accordingly, we, like the trial court, construedefendants' "second motion for turnover" as a motion seeking modification of that final judgment;namely, that the court should alter its previous finding and award the "interim" costs of defendingthe Marciano lawsuit to the defendants.

In light of that determination and the fact that defendants' "second motion for turnover"contains specific grounds that would warrant the modification of the trial court's judgment, weconclude that defendants' "second motion for turnover" was, in effect, a proper Code section 2-1203 motion. And because the defendants filed their notice of appeal 16 business days after thetrial court ruled upon that motion, we find their appeal to be timely. See 155 Ill. 2d R. 303(a)(1). Plaintiff's motion to dismiss is denied.

In their opening brief on appeal, defendants initially argued that the trial court's grant ofsummary judgment in favor of the plaintiff was in error and that summary judgment should havebeen granted to the defendants. Defendants argued in the alternative that: (1) plaintiff had a dutyto pay the costs of the defense from the day plaintiff accepted the duty to defend to the day thetrial court granted summary judgment for the plaintiff; or (2) at the very least, the plaintiff had aduty to pay the costs of the defense from the day plaintiff accepted the duty to defend to the dayplaintiff filed this declaratory action. Plaintiff replied that no statute requires such payments andno court has ever held that insurers have such a liability. In their reply brief, the defendantsappear to concede the point and only raise the argument that the trial court should have grantedsummary judgment to the defendants rather than to the plaintiff.

As this court noted in Abrams v. State Farm Fire & Casualty Co., 306 Ill. App. 3d 545,548 (1999), our review of a trial court's grant or denial of a motion for summary judgment is denovo:

"Summary judgment is appropriate where the pleadings, depositions,admissions, and affidavits, when taken together and in the light most favorable tothe nonmovant, show that there is no genuine issue of material fact and that themovant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West1996); Majca v. Beekil, 183 Ill. 2d 407, 416, 701 N.E.2d 1084 (1998). We reviewthe trial court's granting of a summary judgment de novo. In re Estate of Rennick,181 Ill. 2d 395, 401, 692 N.E.2d 1150 (1998)."

"Where no factual issues are raised on appeal, the sole question on review is whether the trialcourt's entry of summary judgment is proper as a matter of law." Spiegel v. Zurich Insurance Co.,293 Ill. App. 3d 129, 132 (1997). As a result, we are to conduct an independent review of thisissue. Abrams also commented generally upon an insurer's duty to defend:

"An insurer's duty to defend, which is much broader than its duty toindemnify, is generally determined by comparing the allegations of the underlyingcomplaint against the insured to the language of the insurance policy. OutboardMarine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125, 607 N.E.2d1204 (1992). If the facts alleged in the underlying complaint fall even potentiallywithin the policy's coverage, the insurer is obligated to defend its insured. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479, 687 N.E.2d 72(1997); Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d384, 393, 620 N.E.2d 1073 (1993). This is true even if the allegations aregroundless, false, or fraudulent. United States Fidelity & Guaranty Co. v. WilkinInsulation Co., 144 Ill. 2d 64, 73, 578 N.E.2d 926 (1991). In determining theinsurer's duty to defend, '[t]he allegations in the underlying complaint must beliberally construed in favor of the insured.' Outboard Marine, 154 Ill. 2d at 125. Additionally, if a provision of the insurance policy can reasonably be said to beambiguous, that provision will be construed in favor of the insured. United StatesFire Insurance Co. v. Schnackenberg, 88 Ill. 2d 1, 4, 429 N.E.2d 1203 (1981). Wewill not, however, distort the language of a policy to create an ambiguity whereone does not exist. Smith v. Neumann, 289 Ill. App. 3d 1056, 1064, 682 N.E.2d1245 (1997)." Abrams, 306 Ill. App. 3d at 549.

In other words, these rules of construction do not justify construing a contract against an insurerwhere no real ambiguity exists. Cobbins v. General Accident Fire & Life Assurance Corp., 53 Ill. 2d 285, 294 (1972).

McHugh's argument on appeal is that the trial court erred in granting American's motionfor summary judgment and finding that it had no duty to defend McHugh in the underlying action.McHugh first asserts that the policy does not exclude the tort allegations raised in the underlyingcomplaint from American's coverage of the additional insureds. Specifically, McHugh points to aportion of endorsement form 2030M, which provides:

"The person or organization [McHugh] is an additional insured but only withrespect to your [Spectrum's] acts or omissions in connection with 'your work' forthat additional insured by you or on your behalf at the location designated in theagreement and designated in a Certificate of Insurance issued by our authorizedproducer."

Under provision (2)(c) of endorsement form 2030M, McHugh notes, it is entitled to a defense ofthe lawsuit so long as it is possible that the injuries incurred by Marciano arose out of Spectrum'swork on the project.

As to provision (2)(c), because the term "arising out of" does not necessarily require thatSpectrum be the sole cause of the injury or damage (Sportmart, Inc. v. Daisy Manufacturing Co.,268 Ill. App. 3d 974, 978 (1994)), McHugh argues that American "cannot rely on the possibilityof McHugh's liability to deny a duty to defend." Indeed, McHugh argues, this is unlike othercases where the provision requires that the liability of the named insured be the sole and proximatecause of the injury. See American Country Insurance Co. v. Cline, 309 Ill. App. 3d 501, 507(1999) (held that the additional insured was not entitled to a defense where the policy providedcoverage " 'solely limited to liability specifically resulting from the conduct of the Named Insuredwhich may be imputed to the Additional Insured' "). Accordingly, McHugh claims, because thereis no requirement that Spectrum be the only negligent actor, so along as the complaint relates tothe named insured's work, there is a potential for coverage and the policy is triggered.

McHugh also asserts that the present facts fit the prototypical construction site "additionalinsured" case. In that scenario, the employee of a contractor injured in the course of hisemployment on a construction site sues another entity, usually the premises owner or anothercontractor, who is an additional insured under his employer's liability policy. Under such a factualsituation, this court has frequently found that the additional insured is covered because it isapparent that the worker's injury arose out of the named insured's operations, and "but for" theplaintiff's presence on the site in the service of the named insured, the accident would not havehappened. See, e.g., J.A. Jones Construction Co. v. Hartford Fire Insurance Co., 269 Ill. App. 3d148 (1995); West Bend Mutual Insurance Co. v. Sundance Homes, Inc., 238 Ill. App. 3d 335(1992); Shell Oil Co. v. AC&S, Inc., 271 Ill. App. 3d 898 (1995); Maryland Casualty Co. v.Chicago & North Western Transportation Co., 126 Ill. App. 3d 150 (1984).

Defendants assert that in the present case, the same factual pattern exists: "Marciano washurt while working on or near scaffolding that he used as a mason. He was on the site and projectnot at the behest of McHugh; rather, he was working for, and at the immediate direction of, hisemployer Spectrum Stone. *** But for the fact of his employment with Spectrum, Marcianowould not have been at the construction site and would not have been injured." Thus, whereMarciano's injuries were related to Spectrum's presence and work on the site, McHugh concludesthat American's duty to defend should have been triggered. We disagree.

As counsel for McHugh admitted during appellate oral arguments, the Marciano complaintalleges only direct negligence against McHugh. Accordingly, it does not trigger a duty to defend. In particular, Marciano alleged that McHugh erected or caused to be erected the scaffolding fromwhich he fell; that McHugh failed to warn him of the danger posed by the scaffolding; thatMcHugh failed to properly inspect, manage and supervise the jobsite, that McHugh failed toprovide adequate safeguards to prevent injury; and that these acts or omissions proximatelycaused his injury.

Such allegations, we think, take the Marciano complaint outside the protection ofAmerican's endorsement to Spectrum and place it squarely within the coverage exclusion thatmakes American's policy inapplicable to allegations of " 'Bodily Injury' or 'property damage'arising out of any act or omission of the additional insured(s) or any of their employees." In otherwords, we find that the endorsement requires, as a prerequisite to coverage for an additionalinsured, that the underlying complaint at least leaves open the possibility that the injuries at issuecould have arisen out of the acts or omissions of Spectrum, provided that McHugh is not itselfnegligent by an act or omission.

We also find that recent holdings of this court suggest that the additional insuredendorsement American had with Spectrum does not obligate it to defend McHugh. See Village ofHoffman Estates v. Cincinnati Insurance Co., 283 Ill. App. 3d 1011 (1996); American CountryInsurance Co. v. Kraemer Brothers, Inc., 298 Ill. App. 3d 805 (1998); American CountryInsurance Co. v. Cline, 309 Ill. App. 3d 501 (1999); National Union Fire Insurance Co. ofPittsburgh v. R. Olson Construction Contractors, Inc., 329 Ill. App. 3d 228 (2002). In each ofthose cases, the court interpreted additional insured endorsements similar to that in the presentcase under nearly identical facts and excluded coverage for additional insureds by way of summaryjudgment.

In those cases, as here, the tort plaintiff was an employee of the named insured who wasinjured in the course of his employment and alleged direct negligence on the part of the additionalinsured without including a claim against the named insured. In Cline and Kraemer Brothers, theadditional insured endorsement provided " 'no coverage to the Additional Insured, other thanwhich may be imputed to the Additional Insured *** by virtue of the conduct of the NamedInsured.' " Cline, 309 Ill. App. 3d at 504; Kraemer Brothers, 298 Ill. App. 3d at 808. Similarly,the additional insured clause in Hoffman Estates only covered additional insureds " 'with respectto liability incurred solely as a result of some act or omission of the NAMED INSURED.' "(Emphasis omitted.) Hoffman Estates, 283 Ill. App. 3d at 1013. The additional insured provisionin National Union excluded coverage for the additional insured's " 'own negligence or thenegligence of its servants, agents, or employees.' " National Union, 329 Ill. App. 3d at 232. Inreviewing those additional insured endorsements, this court found in all four instances that anunderlying complaint that alleges negligence only on the part of the additional insured did nottrigger a duty to defend or indemnify. Cline, 309 Ill. App. 3d at 515; Kraemer Brothers, 298 Ill.App. 3d at 814; Village of Hoffman Estates, 283 Ill. App. 3d at 1014; National Union, 329 Ill.App. 3d at 234.

Like the underlying complaints in those cases, the underlying complaint in the present caseonly alleges negligence on the part of the additional insured McHugh. In addition, the additionalinsured endorsement here, like the additional insured endorsements at issue in the foregoing cases,does not cover the direct negligence of McHugh, the additional insured. Therefore, for thereasons stated in Cline, Kraemer Brothers, Hoffman Estates, and National Union, McHugh is notentitled to a defense as a matter of law.

In so holding, we find Illinois Emcasco Insurance Co. v. Northwestern National CasualtyCo., 337 Ill. App. 3d 356 (2003), appeal denied, 204 Ill. 2d 660 (2003), cited by McHugh in itsreply brief and the most recent case to grapple with this issue, to be factually inapposite. There,Rodriguez, a workman at a construction site, sued both the general contractor and hissubcontractor employer for damages resulting from a work-related injury. The additional insuredpolicy provision issued by Northwestern contained a specific endorsement for covering thegeneral contractor, but " 'only with respect to liability imputed to [the general contractor] as aresult of negligent acts or omissions of [the subcontractor].' " Emcasco, 337 Ill. App. 3d at 358. The general contractor tendered its defense to Northwestern, which replied that it was " 'unable toaccept this tender of defense due to many unknown facts.' " Emcasco, 337 Ill. App. 3d at 359. However, Northwestern also did not sue for a judgment declaring that it had no duty to defendthe general contractor. Emcasco, 337 Ill. App. 3d at 359.

The general contractor's general liability insurer, Emcasco, agreed to defend the generalcontractor, but then sued for a declaratory judgment and for damages attendant to Northwestern'sbreach of its insurance contract. Emcasco, 337 Ill. App. 3d at 359. Both Northwestern andEmcasco moved for summary judgment on Emcasco's claim against Northwestern for breach ofcontract, and the trial court found that Northwestern had no duty to defend the generalcontractor. Accordingly, the trial court granted Northwestern summary judgment on Emcasco'scomplaint. Emcasco, 337 Ill. App. 3d at 359. In apparent reliance on Cline and its ilk, the trialcourt reasoned:

" '[L]ooking at those pleadings [Rodriguez filed against the generalcontractor], nowhere in them do they present potential coverage under additionalinsurance endorsement of Northwestern policy.

***

Ultimately, it may turn out that the [subcontractor] here will be found tohave been an agent of the general contractor.

And that the liability of the general contractor may result from negligenceof the [subcontractor] being imputed to it within the meaning of this additionalinsured endorsement.

But realistically pleadings do not fairly present the policy.' " Emcasco, 337Ill. App. 3d at 359.

In reversing the trial court, this court began by emphasizing the standard used todetermine whether an underlying complaint potentially falls within the pale of an insurer's policy:

"Courts look to the allegations of the underlying complaint to determine aninsurer's duty to defend its insured. United States Fidelity & Guaranty Co. v.Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991). The insurer has a duty to defendif the complaint alleges facts potentially within policy coverage. Wilkin, 144 Ill. 2dat 73. 'An insurer may not justifiably refuse to defend an action against its insuredunless it is clear from the face of the underlying complaints that the allegations failto state facts which bring the case within, or potentially within, the policy'scoverage.' (Emphasis omitted.) Wilkin, 144 Ill. 2d at 73. The court must resolveall doubts concerning the scope of coverage in favor of the insured. Wilkin, 144Ill. 2d at 74." Emcasco, 337 Ill. App. 3d at 359.

In other words, the Emcasco court reasoned:

"The insurer may refuse to defend only if the insurance contract cannot possiblycover the liability arising from the facts alleged, and the contract cannot possiblycover that liability only when the terms of the policy clearly preclude the possibilityof coverage. As the court said in Insurance Co. of the State of Pennsylvania v.Protective Insurance Co., 227 Ill. App. 3d 360, 367 (1992), 'an insurer canjustifiably refuse to defend only when the allegations of the complaint clearly showon their face that the claim is beyond the coverage of the policy.' [Citations.] Thus, if the insurance covers the liability on any set of facts consistent with theallegations needed to support recovery on any theory raised in the complaint, theinsurance company cannot simply refuse to defend, without suing for a judgmentdeclaring that it has no duty to defend." Emcasco, 337 Ill. App. 3d at 360.

In applying the Wilkin standard to the facts before it, the Emcasco court ultimatelyconcluded that this court's previous determination in Cline (and similar cases) resulted from animproper focus on the language of the underlying complaint in determining whether it waspotentially within the scope of the policy:

"We cannot agree with Cline insofar as it suggested that the failure tospecifically identify [the subcontractor] as the negligent actor relieved [theinsurance company] of the duty to defend. '[T]he duty to defend does not requirethat the complaint allege or use language affirmatively bringing the claims withinthe scope of the policy. The question of coverage should not hinge on thedraftsmanship skills or whims of the plaintiff in the underlying action.' International Insurance Co. v. Rollprint Packaging Products, Inc., 312 Ill. App. 3d998, 1007 (2000). The insurer's duty to defend does not depend upon a sufficientsuggestion of liability raised in the complaint; instead, the insurer has the duty todefend unless the allegations of the underlying complaint demonstrate that theplaintiff in the underlying suit will not be able to prove the insured liable, under anytheory supported by the complaint, without also proving facts that show the lossfalls outside the coverage of the insurance policy. [Citations.] The insurer maysimply refuse to defend only if the allegations of the underlying complaint precludeany possibility of coverage." Emcasco, 337 Ill. App. 3d at 361.

The Emcasco court held that because there existed the possibility of imputed liability between thegeneral contractor and the subcontractor, there was at least one set of facts that potentiallybrought the underlying complaint under the policy's coverage which, in turn, triggered theinsurance company's duty to defend. Emcasco, 337 Ill. App. 3d at 362. Thus, the Emcasco courtreversed the trial court's decision granting Northwestern summary judgment on Emcasco'scomplaint, and remanded for determination of the appropriate relief for the breach of contract. Emcasco, 337 Ill. App. 3d at 362.

We think the court in Emcasco was dealing with a very different factual situation. There,the underlying complaint named both the general contractor and the subcontractor -presumablyfor whom the underlying plaintiff worked- as defendants. Curiously, the Emcasco court did notrefer to the Workers' Compensation Act's bar against injured workers suing their own employers,or explain why the underlying plaintiff added a party that was apparently his employer as acodefendant. However, despite the Emcasco court's assertion that "[w]e cannot agree with Clineinsofar as it suggested that the failure to specifically identify [the subcontractor that purchased theadditional insured clause for the general contractor] as the negligent actor relieved American ofthe duty to defend" (Emcasco, 337 Ill. App. 3d at 361), the underlying plaintiff in Emcascospecifically did identify his employer in his complaint. And because both acts of the insured andthe additional insured were referenced in the underlying complaint, the court had no choice but tofind "[t]he possibility of imputed liability that the complaint left open required Northwestern todefend [the general contractor]." Emcasco, 337 Ill. App. 3d at 362. Such is not the case here.

In the present case, the underlying complaint alleges:

"8. Notwithstanding its duty, at said time and place, the Defendants, byand through their agents, servants, and employees, were then and there guilty ofone or more of the following careless and negligent acts and/or omissions: ***."

The complaint then goes on to list nine different negligent acts or omissions allegedly committedby the defendants "through their agents, servants, and employees." As counsel for McHughadmitted during appellate oral arguments, those allegations can only be read to assert the directliability of McHugh, and say nothing -even remotely- of Spectrum or McHugh's relationship withSpectrum. Accordingly, the underlying complaint in the present case, combined with the evidencebefore us, forecloses any possibility that McHugh could have been found liable based upon theconduct of the named insured, Spectrum. And because those allegations preclude coverage forMcHugh, we hold that the trial court correctly found that American had no duty to defend orindemnify. See American Family Mutual Insurance Co. v. Enright, 334 Ill. App. 3d 1026, 1029(2002) (held that where the insurer owes no duty to defend, it owes no duty to indemnify).

Alternatively, McHugh claims that because the American policy contains at least threeendorsements under which McHugh is entitled to coverage for the Marciano lawsuit, the policy isambiguous. As McHugh notes, if the intention of the parties to an insurance policy cannot bereasonably interpreted or if the terms in it are susceptible to more than one construction, thepolicy is ambiguous. Seeburg Corp. of Delaware v. United Founders Life Insurance Co. ofIllinois, 82 Ill. App. 3d 1034, 1039 (1980). And, McHugh notes, when a policy is determined tobe ambiguous, all ambiguities are to be construed most strongly against the drafter and in favor ofthe insured. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108-09(1992).

However, in all three purportedly applicable endorsements, coverage is afforded only "toliability specifically resulting from the conduct of the named insured which may be imputed to theadditional insured"; "with respect to liability arising out of [the named insured's] ongoingoperations performed for that insured"; and "with respect to [the named insured's] actions oromissions in connection with [the named insured's] work for that additional insured by [the namedinsured] or on [the named insured's] behalf." In other words, even if we were to assume thatAmerican's policy was ambiguous, which we do not, it is clear that each potential endorsementdoes not cover the direct negligence of McHugh, the additional insured. And where the Marcianocomplaint only alleges negligence on the part of the additional insured McHugh, no potential forcoverage exists under any endorsement.

In light of this conclusion, we need not decide American's argument regarding its "tenderto others" clause in its policy with Spectrum. Quite simply, because American never had a duty todefend McHugh against the allegations in the Marciano complaint in the first place, it isunnecessary to determine whether McHugh adequately complied with American's "conditionsprecedent" before giving a proper tender to American. Likewise, it is unnecessary to considerMcHugh's estoppel arguments. Regardless of American's actions prior to the inception of theunderlying lawsuit, the underlying complaint simply did not allege any tortious conduct that wasnot already specifically excluded.

In the end, because we find that we, like the trial court, retain jurisdiction of this matter,we deny defendants' motion to dismiss. Moreover, we hold that because Marciano's complaintforeclosed the possibility of imputed liability between Spectrum and McHugh, American had noduty to defend and, thus, no duty to indemnify. Accordingly, we affirm the trial court's decisiondenying McHugh's motion for summary judgment and granting summary judgment to American. In light of our holding that the plaintiff had no duty to defend, it is unnecessary for us to addressAmerican's arguments regarding its "tender to others" provision or McHugh's estoppel argument.

Affirmed.

QUINN, P.J., and THEIS, J., concur.