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« ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff-Appellant, v. AMERICAN INTERNATIONAL SPECIALTY  LINES INSURANCE COMPANY, No. 02-2360 ...»

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In light of the above analysis of the considerations identified in Wal-Mart Stores, we predict that Virginia would conclude that the indemnification obligations set forth in the MMA need not be set aside for a separate proceeding but should be considered in this case before allocating responsibility for the settlement liability according to the terms of the relevant policies. Given the conclusions set forth above, we hold that the CNA/AISLIC line is primarily responsible for the Benchmark Entities’ share of the settlement. Since the CNA/AISLIC line can pay the full settlement amount without being exhausted, St. Paul and TIG have no obligation to contribute to the settlement.

V.

As a final matter, we must address AISLIC’s contention that VMS Development is not insured under the AISLIC policy, and thus AISLIC is not obligated to contribute towards VMS Development’s share of the settlement. It is undisputed that VMS Development is listed as a "Named Insured" in the CNA policy, and thus its share of the settlement is covered by that policy. While VMS Development is not listed as a Named Insured in the AISLIC policy, one of the definitions in that policy of an "Insured" is "[a]ny person or organization other than the Named Insured included as an additional insured in the Schedule of Underlying Insurance," which includes the CNA policy. J.A. 234.

But AISLIC contends, relying on "the distinction between ‘Additional Insureds’ and ‘Named Insureds,’" Br. of Appellee at 35, that since VMS Development is not specified as an "Additional Insured" in the CNA policy, VMS Development is not covered under the alternate definition of "Insured" in the AISLIC policy.

ST. PAUL FIRE v. AMERICAN INT’L SPECIALTY 21 Despite AISLIC’s borderline-duplicitous unremarked capitalization of quoted materials in the argument section of its brief — which has the effect of making "additional insured" appear to be a defined term in the AISLIC policy7 — "additional insured" is not so defined. Nothing in that policy states, e.g., that "additional insured" references the definition of "Additional Insured" in any other policy. Since the provision at issue can be reasonably read to use "additional insured" to refer as those persons "other than the ‘Named Insured’" of the AISLIC Policy (VMS Lansdowne) that are insured under the CNA policy (which would include VMS Development), "additional insured" is, at minimum, ambiguous.

Given that Illinois law (which governs the AISLIC policy’s interpretation) construes ambiguous terms in insurance policies in favor of coverage, see West Bend Mut. Ins. Co. v. Mulligan Masonry Co., Inc., 786 N.E.2d 1078, 1083 (Ill. App. Ct.), appeal denied, 803 N.E.2d 503 (Ill. 2003), we hold that VMS Development is an "Insured" under the AISLIC policy, requiring AISLIC to cover the portion of its settlement liability that remains after exhaustion of the CNA policy.

Because CNA and AISLIC have initial responsibility for all of the parties to the settlement, CNA, as primary insurer, is responsible for $1 million of the settlement (its policy limit), and AISLIC, as excess insurer, is responsible for the remainder.

CONCLUSION

Because we conclude that CNA and AISLIC are obligated to cover the entire settlement amount, the judgment of the district court is reversed. The case is remanded with instructions to enter summary judgment in favor of St. Paul and TIG and to order AISLIC to reimburse St. Paul for the $1 million St. Paul has already paid toward the settlement and pay toward the settlement the $1 million plus interest for which TIG was erroneously held to be responsible.

REVERSED AND REMANDED

Compare J.A. 234 (stating that "[a]ny person... included as an additional insured" in the CNA policy is an "Insured") with Br. for Appellee at 35 (stating that "[a]ny person... included as an ADDITIONAL INSURED" in the CNA policy is an "Insured")(all capitals added without comment).



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