Illinois Federal Court Allows Consideration of Extrinsic Evidence

In its recent decision in Nautilus Ins. Co. v. Ricciardi Dev., LLC, 2012 U.S. Dist. LEXIS 161244 (N.D. Ill. Nov. 9, 2012), the United States District Court for the Northern District of Illinois had occasion to consider when and under what circumstances an insurer can rely on facts extrinsic to a complaint in evaluating whether it has a duty to defend.

The insured, Ricciardi Development was named as a defendant an underlying suit alleging that it negligently owned and maintained an apartment building in Chicago, Illinois, where a roof porch guard rail collapsed, causing plaintiffs to fall to the ground.   Among other things, it was alleged that Ricciardi has work performed on the porch rails that allowed for the accident.  Notably, the complaint alleged that the accident happened on May 24, 2009, and that Ricciardi owned and renovated the building sometime prior to that date.   The complaint did not allege a specific date on which such work was performed.

At the time of the accident, Ricciardi was insured under a general liability policy issued by Nautilus Insurance Company.  By endorsement, the Nautilus policy excluded coverage for bodily injury resulting from Ricciardi’s work completed prior to September 11, 2008 and specifically stated that Nautilus would have no duty to defend any claim alleging bodily injury arising out of Ricciardi’s work, or work completed for Ricciardi, prior to September 11, 2008.  Having learned from its own investigation that Ricciardi only owned the building only from 2000 through 2005, and thus could not have performed work subsequent to 2008, Nautilus filed suit against Ricciardi, seeking a judicial declaration that it had no duty to defend or indemnify on the basis of this exclusion.

On motion for summary judgment, the court agreed that the exclusion was clear and unambiguous, and thus applied to claims against Ricciardi involving work performed by or for it prior to September 11, 2008.  The underlying suit, however, did not allege the date on which various porch repairs were performed.  The court reasoned, therefore, that if it could only consider allegations contained in the underlying complaint, then Nautilus would have a duty to defend, explaining “[b]ecause September 11, 2008, the policy's cut-off date, is prior to May 24, 2009, the complaint alleges a claim that potentially could fall within the policy's coverage.”  The court further reasoned, however, that if it could rely on facts extrinsic to the complaint, then there was no potential for coverage since any work Ricciardi performed with respect to the porch necessarily was completed prior to 2005 when Ricciardi sold the premises.

The court observed the general rule of Illinois law, which is that an insurer may consider only the facts alleged in the underlying complaint in determining a duty to defend.   It noted, however, an exception to this rule applicable when an insurer elects to file a declaratory judgment action regarding its duty to defend.   Under such circumstances, explained the court, Illinois case law generally supports the proposition that consideration of such extrinsic facts is required except when these facts are central to the determination of an issue in the underlying suit.  Looking to these cases, the court concluded that:

… this court can and must consider the undisputed extrinsic evidence set forth by Nautilus—that Ricciardi sold the property on February 22, 2005, and completed the work on the porch and guardrail before then—in determining whether Nautilus has a duty to defend  Ricciardi and Development. There is no basis for concern that considering this evidence would "tend[] to determine an issue crucial to the determination of the underlying [state court] lawsuit." … Indeed, the opposing sides in the underlying suit unanimously agree in this case that Ricciardi sold the property in February 2005 or, at a minimum, that he did not own the property as of September 11, 2008. … If that fact were contested in or significant to the underlying suit, the opposing sides in that suit would not have agreed on that fact here.

Thus, concluding that consideration of extrinsic facts was permissible and that these facts were dispositive of the policy’s exclusion, the court agreed that Nautilus had no duty to defend.