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                                                                                                                                                                        Second Division
                                                                                                                                                                        December 20, 2005

JUSTICE HALL delivered the opinion of the court:

This appeal arises out of an elevator accident occurring onNovember 15, 1996, which generated a number of underlyingpersonal injury lawsuits.⁽¹⁾ The appeal involves a dispute betweentwo insurance companies, St. Paul Fire & Marine Insurance Company(St. Paul) and Liberty Mutual Fire Insurance Company (Liberty),concerning whether Liberty was obligated to defend and indemnifyits insured, the Central Illinois Public Service Company (CIPS),in the underlying lawsuits. CIPS and the Dover Elevator Company(Dover) were named as defendants in the underlying lawsuits.

The record shows that prior to the accident, CIPS and Doverentered into two separate service contracts under which Doveragreed to modernize and then upgrade two elevators located in apower generating facility owned and operated by CIPS in Newton,Illinois. The parties entered into the first service contract onMarch 18, 1994, and the second on February 12, 1996.

As required by the service contracts, Dover obtained anowners and contractors protective liability insurance (OCP)policy naming CIPS as an insured. The service contracts alsorequired Dover to maintain a commercial general liability (CGL)policy on its own behalf. Liberty issued both policies to Dover.

On May 16, 2000, Liberty filed a declaratory judgment actionseeking a determination that under the OCP and CGL policies itissued to Dover, it did not have a duty to defend or indemnifyCIPS in the underlying lawsuits. The underlying lawsuits werescheduled for trial on October 16, 2000, but just prior to trial,they were settled. St. Paul contributed its $5 million policylimit on behalf of CIPS. Liberty contributed $5 million to thesettlement on behalf of Dover, but nothing on behalf of CIPS.

After the underlying plaintiffs were dismissed from thelitigation, trial commenced solely for the purpose of allocatingliability between CIPS and Dover. On October 26, 2000, the trialcourt dismissed CIPS's indemnity claim against Dover, as well asall other contractual claims between the parties, leaving onlythe contribution claims to be tried.

On November 3, 2000, a jury assessed 95% liability to CIPSand 5% liability to Dover. The trial court later modified thatfinding on posttrial motions, decreasing CIPS's fault to 87.5%and increasing Dover's fault to 12.5%. The parties subsequentlyaccepted the reallocation.

On December 11, 2000, St. Paul filed an amended counterclaimfor a declaratory judgment requesting the trial court to declarethat Liberty did have a duty to defend and indemnify CIPS in theunderlying lawsuits. St. Paul sought reimbursement forsettlement costs and expenses it incurred in defending CIPS inthe underlying lawsuits. St. Paul argued that Liberty wasestopped from contesting its duty to defend and indemnify CIPS,due to its failure to either defend the underlying lawsuits undera reservation of rights or file a timely declaratory judgmentaction concerning its obligation to defend.

On cross-motions for summary judgment on the parties'respective requests for declaratory judgment, the trial courtruled in favor of Liberty and against St. Paul, finding anddeclaring in separate memorandum opinions that Liberty had noduty to defend CIPS under its OCP or CGL policy. After the trialcourt denied its motion for reconsideration, St. Paul filed atimely notice of appeal on April 3, 2002.

Because of its ruling on the duty to defend issue, the trialcourt did not reach the duty to indemnify issue. For the reasonsthat follow, we affirm.ANALYSIS

Since this is an appeal from a summary judgment, our reviewof the trial court's order granting summary judgment is de novo.Sears, Roebuck & Company v. Acceptance Insurance Co., 342 Ill.App. 3d 167, 171, 793 N.E.2d 736 (2003). "The construction of aninsurance policy and a determination of the rights andobligations thereunder are questions of law for the court andappropriate subjects for disposition by summary judgment." Konami(America), Inc. v. Hartford Insurance Co. of Illinois, 326 Ill.App. 3d 874, 877, 761 N.E.2d 1277 (2002).

Summary judgment is appropriate where the pleadings,depositions, and admissions on file, together with any affidavitsand exhibits, when viewed in the light most favorable to thenonmoving party, indicate that there is no genuine issue ofmaterial fact and the moving party is entitled to judgment as amatter of law. 735 ILCS 5/2-1005 (c) (West 2000); Bier v. LeannaLakeside Property Ass'n, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773(1999). As in this case, where the parties file cross-motionsfor summary judgment, they invite the court to decide the issuespresented as a matter of law. Lexmark International, Inc. v.Transportation Insurance Co., 327 Ill. App. 3d 128, 134, 761N.E.2d 1214 (2001).

St. Paul first contends that the trial court erred infinding that the allegations in the underlying complaints fellwithin the "completed operations" exclusion set forth in the OCPpolicy. We disagree.

The underlying lawsuits generally alleged that CIPS wasnegligent by failing to properly maintain and require propermaintenance of the elevator to prevent its falling from thefifteenth floor to the ground floor; by permitting use of theelevator when it knew or should have known of the unsafeconditions of the elevator; and by failing to adequately providemarkings on the elevators for their proper use. A review of therecord shows that these allegations fell within the "completedoperations" exclusion contained in the OCP policy.

The OCP policy contains the following exclusion commonlyreferred to as the "completed operations" exclusion:

"This insurance does not apply to:

(c) 'Bodily injury' or 'property damage' which occursafter the earliest of the following times:

(1) When all 'work' on the project (other than service,maintenance or repairs) to be performed for you by the'contractor' at the site of the covered operations hasbeen completed; or

(2) When that portion of the 'contractor's' 'work', outof which the injury or damage arises, has been put toits intended use by any person or organization."

Under the "completed operations" exclusion, a contract oroperation is generally deemed completed when the work contractedfor or undertaken has been finished and put to its intended use.See 9A Couch on Insurance