“Other Insurance” Provision Does not Create Affirmative Coverage Obligation to Additional Insured

FHP Tectonics Corp. v. American Home Assurance Co. (Ill. App. Ct., May 13, 2016)

An Illinois appellate court held that an insurer owed no duty to defend a general contractor as an additional insured against a wrongful death action alleging negligence by an employee of a subcontractor. The general contractor claimed that an “additional insured – primary insurance” endorsement, which positioned the insurer as primary when additional insured coverage was triggered and when other insurance was simultaneously available to the additional insured, imposed an affirmative duty to defend the general contractor as an additional insured. The court disagreed, reaffirming state precedent that “other insurance” provisions do not create coverage where none exists otherwise, but rather establish priority or allocation of coverage after a coverage obligation has been established. The courtalso held that the named insured’s selfinsured retention applied equally to the additional insured, and that the estoppel doctrine could not create coverage where none existed in the first instance.