Supreme Court Summaries
Opinions filed November 29, 2007
No. 103588 Kajima Construction Services, Inc. v. St. Paul Fire & Marine
Appellate citation: 368 Ill. App. 3d 665.
CHIEF JUSTICE THOMAS delivered the judgment of the court, with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and Burke concurred in the
judgment and opinion.
In Glendale Heights in 1997, a serious personal injury accident occurred at a construction site.
The victim, an employee of a sub-subcontractor, ultimately settled for $3 million in his suit
against the involved subcontractor, Midwestern Steel Fabricators, and the general contractor,
Kajima had $1 million in commercial general liability insurance with Tokio Marine and Fire
Insurance Company. This coverage was primary. In addition, the subcontractor, Midwestern,
provided insurance for the benefit of Kajima with St. Paul Fire and Marine Insurance Company.
This consisted of primary coverage in the amount of $2 million of general liability and a $5
million umbrella policy as excess coverage.
When sued, Kajima elected to be defended and indemnified by St. Paul rather than Tokio, as
allowed under the targeted-tender doctrine. The case was settled for $3 million, with St. Paul
paying $2 million and Tokio $1 million, the limits of the primary policies of each.
In the circuit court of Cook County, Kajima and Tokio brought this declaratory judgment
action, seeking reimbursement from St. Paul of the $1 million Tokio had paid. It was alleged that
this amount should be paid by the excess insurance provided by St. Paul. The circuit court
refused this request and entered a summary judgment for St. Paul. The appellate court affirmed,
and so did the Illinois Supreme Court in this decision. The court reaffirmed the rule that primary
coverages must be exhausted before excess coverages are looked to. The court said that this is
true even where, as here, an insured is allowed to make a choice as to which of several available
insurers will defend it. The supreme court declined to hold that, once such an insurer has been
selected, or “targeted,” its excess coverage may be reached when other primary coverage is
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