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City's suit over allegedly faulty cable barrier at Midway Airport's parking garage spurs insurance dispute

By Kenneth Lowe | May 7, 2014

An insurance company is suing to get out of the middle of a tangled litigation blame game, as a group of Chicago contractors face allegations from one another and the City of Chicago over the construction of a safety feature at a Midway Airport parking garage.

The complaint, filed April 30 in Chicago's federal court, seeks a declaration that New Hampshire Insurance Co.  is not liable for defending the contractors from the city's lawsuit that contends a cable barrier built to prevent cars from accidentally falling off the edge of an airport parking structure did not do its job.

“The City alleges that ‘[o]n June 11, 2008, an automobile ran into the Cable Barrier System on the second level of the Parking Structure,’” the complaint states. “‘Rather than halting the vehicle, the Cable Barrier System gave way, and the vehicle fell to the floor below, striking and causing damage to a metal HVAC component on the way down.’”

In its suit, filed in 2012 in Cook County Circuit Court, the city notes it conducted a structural analysis of the cable system and determined it needed to be replaced, then sued the contractors who built the allegedly faulty barrier system. Those contractors, in turn, started suing their subcontractors.

Amidst that game of negligence hot-potato, New Hampshire Insurance Co. filed its complaint for declaratory judgment last month against the contractors: Gateway Construction Company Inc., Concrete Structures of the Midwest Inc., Commercial Resources Construction Company Inc., and Bridgeport Steel Sales Inc., as well as the Tri-Venture entity of Concrete Structures, Commercial Resources and Bridgeport Steel.

The insurance company named the City of Chicago in its suit, but seeks no relief from it.

According to the complaint, the finger-pointing includes Concrete Structures and Tri-Venture filing a third-party complaint alleging breach of contract against Gateway and three of the other contractors, seeking the same relief contingent upon the city’s in its suit.

Bridgeport, in turn, filed a counterclaim against Gateway alleging breach of contract and negligence, and then Gateway filed a counterclaim against Bridgeport “stemming from and arising out of the design and construction” of the parking garage in question.

The contractors involved individually tried to claim defense under commercial general liability policies issued by New Hampshire, which asserts it is not obligated to defend the companies from the city’s suit under the circumstances.

In its complaint, the company claims its policy "does not provide coverage for the damages that are at issue and, therefore, New Hampshire seeks a declaration from this Court that it has no duty to defend Gateway, Concrete Structures, Bridgeport and the Tri-Venture.”

Citing the text of its policy, New Hampshire states “defective, deficient, inadequate or dangerous” work or products are excluded, as is coverage if the policyholder failed to fulfill a contract. It also specifies that any property damage or bodily injury coverage under the policy applied during the period the contractors’ work was in progress, not after its completion.

New Hampshire is represented by Chicago attorneys Smita Mokshagundam and Joseph A. Hinkhouse of Hinkhouse Williams Walsh LLP.

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