Mark Polizzi was employed by Keystone Mechanical Industries, which was installing underground water utilities at the Edgewood Estates development. Scarsdale Development was the general contractor and Keystone was the plumbing subcontractor. While Polizzi was working in a trench, the walls collapsed, causing his death. Keystone had a commercial liability policy issued by American Country with limits of $1 million for a single occurrence, and Scarsdale was shown as an additional insured.
Keystone also had a $5 million commercial excess policy (an umbrella policy) issued by American Country, and while Scarsdale was not covered under the original policy, it was later added as an additional insured. Scarsdale also had secured a homebuilders commercial lines policy, which provided general liability coverage of $1 million for each occurrence, as well as a commercial excess umbrella policy with $5 million limit for each occurrence.
The survivors of Mark Polizzi settled the wrongful death action for $4.5 million. American Country, Hanover, and Chubb all contributed to the settlement, and this action was then filed by American Country to determine the priority of coverage for the second $1 million settlement.
American contended that its umbrella policy was excess to, and should pay after, the policy issued by Hanover. Hanover relied upon its policy provision that it would not pay until after all other insurance had been paid.
The lower court found in favor of American Country, and Hanover appealed.
The higher court found that the American Country's policy only excepted insurance written specifically to be excess over the umbrella policy. Hanover's policy stated that it was excess over any other insurance, whether primary, excess, contingent or on any other basis.
That language, in the court's opinion, could not be interpreted to mean that it was specifically written to be excess over American Country's umbrella policy. The court said if that had been the intention, the American Country's umbrella policy would have been specifically named in Hanover's "Other Insurance" clause.
The higher court concluded that American Country's umbrella policy was excess over Hanover's policy, and the judgment of the trial court in favor of American County was affirmed.
American Country Insurance Company v. Hanover Insurance Company, Appellant; Chubb Insurance Company, Scarsdale Development, Ltd., and Kathleen Polizzi, administrator of
the estate of Mark Polizzi--No. 1-96-2975--Appellate Court of Illinois, First District, Fourth Division--December 18, 1997--Rehearing denied January 21, 1998--689 North Eastern Reporter 2d 186.