Madison County lawsuit target sues insurer for failing to defend

Kelly Holleran Jul. 6, 2009, 10:13am

A Madison County concrete company has filed suit against Erie Insurance, alleging it failed to defend the concrete company in a lawsuit.

Design Concrete Foundation, Inc. says it had insurance with Erie Insurance Property and Casualty Company, also known as Erie Insurance Group, when it was served with a complaint filed Aug. 31, 2006, in Madison County Circuit Court.

On Aug. 2, 2007, Design Concrete sent Erie a written notice of the lawsuit, according to the complaint filed June 26 in Madison County Circuit Court.

Again, on Aug. 29, 2007, Design Concrete sent Erie another letter with additional facts about the claim. Included in the letter was a request that Erie cover the costs of defending the suit, the complaint says.

"By reason of the lawsuit, plaintiff became entitled under the terms of the insurance policy to receive from defendant the costs of defending the lawsuit," the suit states.

However, Erie denied coverage on Oct. 18, 2007, because it said the suit did not meet the definitions of bodily injury, property damage or occurrence, Design Concrete claims.

But Design Concrete contends its claim should have been covered under a Products/Completed Operations Liability coverage it paid a premium for, but which Erie never provided.

Erie also concealed available coverage from Design Concrete, according to the complaint.

"Defendant contracted to give plaintiff a 'Fivestar Contractors Policy' policy as opposed to simply a 'commercial general liability policy,' which was the only form defendant represented to plaintiff and his attorney applied to plaintiff's predicament," the suit states.

As a result, Design Concrete has been forced to pay $22,541.99 in defending the suit, plus $2,000 in settling the suit, according to the complaint.

In the three-count complaint, Design Concrete is seeking a judgment of $84,541.99, plus punitive and compensatory damages and costs.

Thomas W. Burkart of Burkart Law Offices in Hamel will be representing it.

Madison County Circuit Court case number: 09-L-669.

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