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Atchison, Topeka & Santa Fe Ry. Co. v. St. Paul Surplus Lines Insurance Co.

Case Date: 03/11/2002
Court: 1st District Appellate
Docket No: 1-99-4494 Rel

FIRST DIVISION
MARCH 11, 2002



No. 1-99-4494


THE ATCHISON, TOPEKA and SANTA FE
RAILWAY COMPANY,

                        Plaintiff-Appellant,

          v.

ST. PAUL SURPLUS LINES INSURANCE
COMPANY, et al.,

                         Defendants-Appellees.

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) 		Appeal from the
Circuit Court of
Cook County.

No. 96 CH 12608

Honorable
Robert V. Boharic
Judge Presiding.


JUSTICE TULLY delivered the opinion of the court:

This appeal arises from a declaratory judgment action brought by The Burlington Northern Santa Fe Railway Company,successor in interest to The Atchison, Topeka and Santa Fe Railway Company (Santa Fe), to determine whether defendant St. PaulSurplus Lines Insurance Company (St. Paul) has an obligation to defend and indemnify Santa Fe in four underlying personal injurylawsuits against Santa Fe. The circuit court granted summary judgment in favor of St. Paul finding that, based on the insurancepolicy's employer's liability exclusion, St. Paul had no duty to defend or indemnify Santa Fe for the underlying lawsuits.

Background

On September 1, 1990, Santa Fe entered into a written five year agreement with In-Terminal Services, Inc. (ITS), by which ITSwas hired as an independent contractor at Santa Fe internodal terminals to load and unload the trailers and containers from the railroadflatcars and move the trailers around Santa Fe's terminal yards. ITS is a division of Mi-Jack Products, Inc. (Mi-Jack). Fromapproximately 1990 to 1995, ITS or Mi-Jack purchased commercial general liability insurance on an occurrence basis from St. Paul. Santa Fe was added to the St. Paul policy pursuant to an endorsement providing that Additional Protected Persons include "Allorganizations where required by contract with the Named Insured ***".

The Insurance Policies

St. Paul issued general commercial liability policies with named insured Mi-Jack covering the period October 1, 1991 toOctober 1, 1994. By endorsement, ITS was also a named insured on the policies. The policies provide that Santa Fe is covered underthe Additional Protected Persons endorsement.

The St. Paul policies contain the following provision:

"Separation of protected persons. This agreement applies: