Crane v. Admiral Insurance Co. ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
John Crane, Inc. v. Admiral Insurance Co., 2013 IL App (1st) 093240-B
Appellate Court JOHN CRANE, INC., Plaintiff-Appellant and Cross-Appellee, v.
Caption ADMIRAL INSURANCE COMPANY, AMERICAN MOTORISTS
INSURANCE COMPANY, FIRST STATE INSURANCE COMPANY,
HARTFORD ACCIDENT AND INDEMNITY, LUMBERMENS
MUTUAL CASUALTY COMPANY, and TWIN CITY FIRE
INSURANCE COMPANY, CERTAIN UNDERWRITERS AT LLOYDS
OF LONDON, and CERTAIN LONDON MARKET INSURANCE
COMPANIES, Including Excess Insurance Company, Ltd., General
Reinsurance Corporation, River Thames Insurance Company, World
Auxiliary Insurance Corporation, and John Does 1 Through 400,
Defendants (Allianz Underwriters Insurance Company, Allstate Insurance
Company, AIU Insurance Company, American Re-Insurance Company,
Granite State Insurance Company, Lexington Insurance Company,
National Surety Corporation, National Union Fire Insurance Company of
Pittsburgh, PA, Insurance Company of North America, and TIG
Insurance Company, Defendants-Appellees; Columbia Casualty
Company, Continental Casualty Company, and The Continental
Insurance Company, Defendants-Appellees and Cross-Appellants).
District & No. First District, Second Division
Docket No. 1-09-3240
Filed June 4, 2013
Held In a complex action arising from a dispute over the primary, excess and
(Note: This syllabus umbrella insurance coverages for asbestos-related claims against plaintiff,
constitutes no part of the trial court properly held that the horizontal exhaustion doctrine
the opinion of the court required plaintiff to prove that all of its primary policy limits were
but has been prepared exhausted before any umbrella and excess insurers had to contribute,
by the Reporter of regardless of the agreement under which plaintiff and its primary insurer
Decisions for the attempted to renegotiate those limits in view of plaintiff’s no-settlement
convenience of the policy with regard to asbestos claims, all triggered excess or umbrella
reader.)
policies would be jointly and severally liable, and plaintiff would not be
required to prove all three of the triggers for asbestos coverage outlined
in Zurich; rather, coverage would be triggered by proof of exposure,
sickness or disease.
Decision Under Appeal from the Circuit Court of Cook County, No. 04-CH-08266; the
Review Hon. Dorothy Kirie Kinnaird, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded with directions.
Counsel on Kevin M. Forde, Ltd. (Kevin M. Forde and Joanne R. Driscoll, of
Appeal counsel), Nisen & Elliott LLC, both of Chicago (Michael J. Daley and
Claire E. Gorman, of counsel), and Farella Braun & Martell, LLP, of San
Francisco, California (John L. Cooper, Dennis M. Cusack, and Erica
Villanueva, of counsel), for appellant.
Troutman Sanders LLP (Rebecca L. Ross, Clinton E. Cameron, David F.
Cutter, and Stephanie L. Haas, of counsel), Bates Carey Nicolaides, LLP
(Catherine M. Crisham, Kristi S. Nolley, Ellen J. Zabinski, and Agelo L.
Reppas, of counsel), SmithAmundsen LLC (Timothy J. Fagan and
Michael L. Resis, of counsel), Clausen Miller P.C. (Mary F. Stafford,
Colleen A. Beverly, and Melinda S. Kollross, of counsel), Cozen &
O’Connor (John D. LaBarbera, of counsel), and Hughes Socol Piers
Resnick & Dym, Ltd., all of Chicago (Robert R. Anderson III, John
Hughes, and Daniel A. Waitzman, of counsel), for appellees.
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Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion.
Justices Quinn and Connors concurred in the judgment and opinion.
OPINION
¶1 Plaintiff John Crane, Inc. (Crane), appeals the circuit court’s judgment on its first
amended complaint against defendants Columbia Casualty Company, Continental Casualty
Company, Continental Insurance Company (collectively referred to as CNA), TIG Insurance
Company (TIG), Allianz Underwriters Insurance Company, Munich Reinsurance America,
Inc., f/k/a American Re-Insurance Company, National Surety Corporation (collectively
referred to as Allianz), Allstate Insurance Company, and AIU Insurance Company, Granite
State Insurance Company, Lexington Insurance Company, and National Union Fire Insurance
Company of Pittsburgh, PA (collectively referred to as AIG-related Companies), seeking a
declaration of rights.1 On appeal, Crane contends the trial court erred in (1) finding that the
parties could not use the agreement concerning coverage (ACC) to determine that Kemper’s
primary policies had been exhausted by November 2004; (2) determining that a pro rata
allocation of payments by excess and umbrella insurers applies, rather than an “all sums”
allocation; and (3) finding that Zurich Insurance Co. v. Raymark Industries, Inc., 118 Ill. 2d
23 (1987), requires Crane to prove all three trigger dates to prove exhaustion of its primary
policies. CNA defendants also filed a cross-appeal in which it alleges that the trial court erred
in (1) determining that mere exposure to asbestos constitutes bodily injury under Zurich; and
(2) failing to adopt an equitable continuous trigger.
¶2 In an opinion filed on March 5, 2013, this court affirmed the trial court in part, reversed
in part and remanded with directions. The CNA and Allianz defendants filed petitions for
rehearing, which this court granted. Crane filed a response and the CNA and Allianz
defendants filed their replies. Upon consideration of the petitions for rehearing, we issue the
following opinion and affirm in part, reverse in part and remand with directions.
¶3 JURISDICTION
¶4 The circuit court entered an order on November 13, 2009, resolving all claims pled in
Crane’s first amended complaint, and all but one of defendants’ counterclaims. The order
stated that there was “no just reason for delaying either enforcement or appeal.” Crane filed
a notice of appeal on November 25, 2009. Accordingly, this court has jurisdiction pursuant
to Illinois Supreme Court Rules 304(a) governing appeals that do not dispose of an entire
1
Other defendants are not parties to this appeal or cross-appeal.
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proceeding. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).2
¶5 BACKGROUND
¶6 The trial court in this matter presided over intensive discovery, heard more than 25
summary judgment motions, and conducted two trials during a period of almost five years.
It issued six detailed memorandum opinions and orders, and the record contains over 200
volumes. We have set forth only those facts necessary to resolve the issues on appeal and
cross-appeal.
¶7 Crane manufactures sealing systems and prior to 1986, it manufactured gaskets
containing asbestos. From January 1, 1944, through August 1, 2001, Crane purchased
primary insurance coverage from Kemper, which is not a party to this appeal. These policies
contained a duty to defend and provided that defense costs would be paid in addition to the
policy limits. The parties to this appeal stipulated that the limits of Kemper’s primary
policies totaled $41,075,000.
¶8 Crane also purchased umbrella insurance coverage above the primary coverage. CNA
issued umbrella policies to Crane from 1961 to 1967, and from 1978 to 1981. Allianz issued
an umbrella policy for the period between November 30, 1981, to November 30, 1982, and
TIG issued an excess policy above Allianz’s umbrella policy for that same period. Kemper
also issued three umbrella policies to Crane above its primary insurance from 1967 to 1977.
¶9 Since 1979, Crane has been named as a defendant in over 250,000 asbestos-related bodily
injury claims throughout the United States. Kemper began defending Crane in these suits and
agreed to adopt a no-settlement policy based on Crane’s position that their products were not
the likely source of the victims’ asbestos-related disease. In 2001, facing financial difficulty,
Kemper attempted to renegotiate the no-settlement policy with Crane. On January 7, 2002,
the parties entered into the ACC. The purpose of the ACC was to resolve “the questions and
issues addressed herein relating to the existence and handling of coverage for John Crane for
Asbestos-Related Claims.” The ACC addressed retroactive amendments to Kemper’s
primary policies issued from January 1, 1987 to August 1, 2001 (post-1986 policies). Crane
did not have umbrella or excess insurance coverage by defendant insurers for this period. The
ACC provided that although the original policies issued by Kemper allowed only for
indemnity payments to erode the policy limits, the retroactive amendments provided that the
post-1986 policy limits would be eroded by payments of both damages and defense expenses.
As the trial court stated in its October 16, 2007, order, “the Post-1986 Policies’ limits
changed from $2 million per year plus unlimited defense to $2 million per year including
defense.” The ACC further provided that Kemper issue a new $70 million supplemental
2
In its appellee brief, CNA raises the issue that this court lacks jurisdiction to consider
Crane’s appeal because a prior appeal was dismissed for failure to prosecute. Although this court
had filed a judgment on July 19, 2011 and August 30, 2011, dismissing the appeal for lack of
jurisdiction, the supreme court issued a supervisory order directing this court to vacate its order and
“reinstate the appeal, and to consider the case on the merits.” John Crane, Inc. v. Admiral Insurance
Co., No. 113200 (Ill. Jan. 11, 2012) (supervisory order).
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excess policy (SEP) to Crane and that Kemper agreed to continue with the no-settlement
strategy.
¶ 10 On January 7, 2002, the parties also entered into the Caruolo agreement, which involved
a case originating in New York. The dispute centered on the payment of $5.83 million in
prejudgment interest in the case. The agreement provided that the payment could be allocated
against Kemper’s pre-1987 policy limits in exchange for $5 million being added to the limits
of the post-1986 Kemper policies.
¶ 11 Crane filed a claim for declaratory judgment in May 2004. On October 22, 2004, it filed
its first amended complaint containing three counts. Count I sought a declaration that Crane’s
primary insurance coverage was exhausted. Counts II and III sought a declaration of the
obligations of the umbrella and excess insurance carriers as to the underlying asbestos
claims. CNA filed a counterclaim for declaratory judgment, seeking a determination of the
appropriate triggers for coverage, that CNA is entitled to a pro rata allocation of payments,
and that Crane’s primary coverage limit had not been exhausted.
¶ 12 In February 2005, citing Zurich Insurance Co. v. Raymark Industries, Inc., 118 Ill. 2d 23
(1987), Crane filed a motion for partial summary judgment arguing that an “all sums”
allocation of payments is appropriate whereby each umbrella policy triggered by a claim
must pay up to its policy limits. CNA filed a response claiming an affirmative defense.
Allianz filed a cross-motion arguing, in part, that the “all sums” allocation was contrary to
the terms of its umbrella policy and was not equitable as applied to umbrella insurers. On
April 12, 2006, the trial court issued an order determining that a pro rata allocation applied
to the excess and umbrella carriers, pointing out that Zurich involved only primary insurers.
The court denied Crane’s motion for partial summary judgment on count I of its first
amended complaint seeking an “all sums” allocation. The court granted Allianz’s cross-
motion for partial summary judgment on the issue of pro rata allocation and CNA’s
affirmative defense in seeking a pro rata allocation.
¶ 13 The trial court also found that, regarding the ACC, Crane and Kemper could retroactively
amend their post-1986 policies without consulting nonprimary insurers because none of those
insurers issued policies to Crane after 1986. In the trial court, Kemper and Crane argued that
under the terms of the ACC, Kemper’s primary insurance was exhausted in November 2004.
The trial court, however, decided that it could not rule on this issue until it determined the
validity of the ACC and resolved issues of good faith and intent of the parties in entering the
agreement. The court also directed the parties to brief the issue of severability of the
agreement in case one or more provisions proved invalid.
¶ 14 The trial court subsequently found that sections five and six of the ACC, which deal
specifically with issues of trigger, allocation, and cost recovery from other insurers, were
severable. It determined that the “core purpose” of the ACC was to resolve the no-settlement
strategy issue between Kemper and Crane, and the parties would have entered into the
agreement even without those provisions.
¶ 15 The trial court also decided that it would hold an exhaustion trial in the future to
determine whether Kemper’s primary policies had been exhausted. If, during the exhaustion
trial, sections five and six were found to be void, those sections could be severed without
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affecting the rest of the ACC. The trial court concluded that “Crane may use the ACC in
demonstrating exhaustion at the Exhaustion Trial. Whether the primary layer of coverage is
exhausted will be determined after the Exhaustion Trial based upon the principles of the
doctrine of horizontal exhaustion.”
¶ 16 After the trial court issued its April 12, 2006, order, certain excess carriers including TIG
filed a joint motion to extend the court’s ruling adopting a pro rata allocation to their excess
policies. The trial court granted their motion on June 21, 2006.
¶ 17 On October 30, 2006, Crane and Kemper entered into another agreement (2006
settlement). Crane agreed to release Kemper from all potential remaining obligations under
its primary policies and its umbrella policies for a lump sum totaling more than $20 million.
The 2006 settlement also contained a provision in which Crane agreed to undertake any
obligations Kemper would have had under the primary policies. As the trial court noted,
“Crane concedes that as a result of the 2006 Settlement, Crane stands in the shoes of
Kemper.”
¶ 18 On October 16, 2007, the trial court issued an order that determined whether Crane, in
standing in the shoes of Kemper, may rely on policy limits as established by the ACC to
prove exhaustion, or whether it was obligated to prove exhaustion of Kemper’s original
policy limits. Relying on United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App.
3d 598 (1994) (hereinafter U.S. Gypsum), AAA Disposal Systems, Inc. v. Aetna Casualty &
Surety Co., 355 Ill. App. 3d 275 (2005), Kajima Construction Services, Inc. v. St. Paul Fire
& Marine Insurance Co., 368 Ill. App. 3d 665 (2006) (Kajima I), and North River Insurance
Co. v. Grinnell Mutual Reinsurance Co., 369 Ill. App. 3d 563 (2006), the trial court held that
the horizontal exhaustion doctrine applied. The doctrine is based on the “other insurance”
provision of excess insurer policies, which “require[ ] the insured to exhaust all triggered
primary insurance before pursuing coverage under the excess policies.” The trial court cited
the above cases to support its finding that insureds cannot “choose to make policies
unavailable” for application of the horizontal exhaustion doctrine.
¶ 19 The trial court reasoned that Crane’s argument “assert[s] that Kemper’s original policy
limits are unavailable for purposes of exhaustion because of the ACC [sic] and the 2006
Settlement retroactively amended the Post-1986 Policies and it is those amendments that
control.” Therefore, “the original policies’ limits of liability are no longer available.” The
court held that “Crane cannot make the original limits of liability to primary insurance
unavailable simply by retroactively amending policy terms. *** [I]n order for the umbrella
or excess coverage to be triggered, the insured must show that the full limits of the policies
as originally written are exhausted.” The original limits on these policies were $2 million per
year excluding defense costs.
¶ 20 On December 20, 2007, after holding a medical trial, the trial court confirmed the
continued applicability of “Zurich’s holding that exposure to asbestos constitutes bodily
injury and thus, the policies in effect during the exposure years are triggered.” It rejected
Crane’s argument for a continuous trigger because after presentation of the evidence the
court could not “conclude that in every case there is a progression of continuing body injury
between the time a claimant’s exposure to asbestos ceases and the time the claimant is
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diagnosed with the disease.” Therefore, the trial court applied Zurich’s triple trigger.
“Insurance policies in effect during the years of exposure, during the years of sickness, and
during the years of manifestation (through duration) of the disease will be triggered.”
However, it determined that “any mutations that may occur between the last day of exposure
and the first day of symptoms[ ] do not constitute a new injury or sickness to which the
policies must respond.”
¶ 21 The trial court’s orders up to this point determined that (1) there was a single occurrence;
(2) it would use Zurich’s triple trigger to determine exhaustion of Kemper’s primary policies;
(3) the doctrine of horizontal exhaustion applied; and (4) Crane must “stand in the shoes” of
Kemper in demonstrating exhaustion of the primary policies as they were originally issued.
The trial court set a date for a bench trial (exhaustion trial) to determine whether Crane
sufficiently proved that payments of the first 67 claims exhausted Kemper’s primary policies
in effect from 1944 to 2001.
¶ 22 The parties stipulated to Kemper’s original primary policy limits of $41,075,000 and that
payments of $37,065,259 have been made on 54 of the 67 claims at issue. The 13 payments
in dispute total $14,804,583. Prior to trial, Crane presented two witnesses who testified as
to the disputed payments. The disputes centered on the “amount paid and the amount
allocated for indemnity or prejudgment interest or delay damages.” After presentation of the
evidence, the trial court determined that Crane failed to prove six of the disputed payments,
totaling $8,832,467.
¶ 23 At the exhaustion trial, Crane had the burden of proving trigger dates and allocation. In
its memorandum opinion and order of March 10, 2009, the trial court outlined the following
facts. Crane presented Mr. Jones as its sole expert witness. Mr. Jones testified as to the
trigger dates, allocation of the 67 adverse asbestos claims at issue, and to what extent
Kemper’s primary policies were exhausted by payments of these claims. Although the
discovery process yielded 500 boxes of documents, CNA’s counsel, along with consultant
Dr. Anne Gron, reduced the documents used to four boxes. CNA did not retain Dr. Gron as
an expert witness and no one with first-hand knowledge testified at trial as to the reduction
process. The trial court noted that although this is the third time Mr. Jones has testified about
insurance allocations, it “is the first time he testified where he did not participate in, collect,
or supervise the collection of the data that supports his allocation. This is also the first time
that Mr. Jones has testified to an insurance allocation based upon data collected by opposing
counsel and opposing counsel’s experts.”
¶ 24 The trial court found that Mr. Jones’ allocations suffered from “methodological and
procedural defects” such that he “did not complete, participate in, or supervise a true,
independent, expert review of the underlying claim materials.” The trial court specifically
noted four areas of concern. “First, Mr. Jones did not seek to determine or independently
confirm whether the four boxes were a representative or relevant sample of the universe of
500 boxes. *** Second, Mr. Jones relied on everything in the four boxes without question
[as to their reliability or trustworthiness].” Third, Mr. Jones used Dr. Gron’s dates even
though he had never spoken to or met her. Although he knew that she had not previously
performed an insurance allocation, he accepted her dates “the majority of the time *** even
in those instances when the document or his protocol dictated that he should select another
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date.” Fourth, Mr. Jones only reviewed materials contained in the four boxes selected by
CNA’s counsel and Dr. Gron because he was instructed to do so by Crane’s counsel. Mr.
Jones testified that he would have reviewed the entire 500 boxes of material if asked to do
so. The trial court also found that some of the documents relied upon by Mr. Jones were
untrustworthy and unreliable.
¶ 25 The trial court also found that Crane did not satisfy its burden of proving that Kemper’s
primary policies had been exhausted by the 67 claims. It reasoned that Crane’s expert, Mr.
Jones, was not credible given the limitations Crane imposed on him and his allocation “was
based on incomplete information which the Court found to be largely untrustworthy.”
Therefore, reliable trigger dates could not be ascertained from Mr. Jones’ testimony and
Crane could not prove whether certain primary policies were triggered for coverage. Since
Crane did not prove exhaustion of the primary policies, defendants at this time “have no
coverage obligations to Crane under their respective umbrella and excess policies. Under
these circumstances, the Court need not reach the legal issues raised by the parties nor
address the relief request in” defendants’ counterclaims.
¶ 26 However, the trial court did find that the claim of Bernard Mayer was sufficiently proved.
The parties stipulated to the exposure, sickness, and diagnosis dates. Therefore, the trial court
determined that “[t]he Kemper primary policies in effect from January 1, 1944, to December
31, 1944, and from January 1945 to December 31, 1945, are eroded by the stipulated paid
indemnity of $1,329,795 to the Mayer claim on a pro-rata allocation.”
¶ 27 The trial court also addressed CNA’s motion to reconsider its ruling in the medical trial
that Zurich’s triple trigger applied. Citing as support cases from New York3 and England,
CNA asked the trial court “to hold that (1) mere exposure does not constitute ‘bodily injury;’
(2) there is no ‘bodily injury’ for mesothelioma claims more than six years before death; (3)
there is no ‘bodily injury’ for lung cancer more than 10 years from symptoms or death; and
(4) Crane may use the legal fiction of an ‘equitable continuous trigger’ in the absence of
proof on the timing of actual injury for non-malignant claims.” The CNA argued that the
New York and English cases “reflect a growing consensus that mere exposure does not
constitute bodily injury for insurance purposes.” The trial court denied the request, finding
that the CNA presented no newly discovered evidence, change of law, or errors in the court’s
earlier application of the law. Crane filed this timely appeal and CNA filed a cross-appeal.
¶ 28 ANALYSIS
¶ 29 As an initial matter, we address TIG’s motion to strike portions of Crane’s opening brief
which we have taken with the case. TIG argues that Crane’s use of 30 footnotes, many of
which contain substantive arguments, violates Illinois Supreme Court Rule 341(a) (eff. July
1, 2008). TIG also contends that Crane violated Illinois Supreme Court Rules 341(h)(2) and
(6) (eff. July 1, 2008) by misstating the facts and including arguments in its introductory
paragraph. TIG requests that this court strike all footnotes, as well as any misstatements and
3
Continental Casualty Co. v. Employers Insurance Co. of Wausau, 865 N.Y.S.2d 855 (N.Y.
Sup. Ct. 2008).
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misplaced arguments. We acknowledge TIG’s position that substantive arguments belong
in the body of the brief, and its concern that Crane was attempting to evade the 70-page limit
set by this court. We also note that the case involves complex issues and numerous motions
from Crane and defendants. We deny TIG’s motion to strike portions of Crane’s opening
brief. However, we will disregard any inappropriate or unsupported material, and any
substantive arguments contained only in the footnotes. Tekansky v. Pearson, 263 Ill. App.
3d 759, 763 (1994); Gehrett v. Chrysler Corp., 379 Ill. App. 3d 162, 171 (2008).
¶ 30 TIG also argues that Crane waived consideration of the language in its excess policy
because Crane did not specifically address TIG’s policy in the trial court. TIG further argues
that in its brief Crane requested reversal of the trial court’s pro rata ruling in favor of
umbrella carriers but neglected to mention excess carriers. Therefore, Crane waived the issue
as to excess carriers such as TIG. These issues of law have been fully briefed by the parties
on appeal. It is also reasonable to presume that Crane’s failure to include excess carriers in
its pro rata issue was a minor error in a complex case. The waiver rule “is a limitation on the
parties and not the jurisdiction of the courts.” Committee for Educational Rights v. Edgar,
174 Ill. 2d 1, 11 (1996). Therefore, we choose to address these issues on the merits.
¶ 31 I. ACC
¶ 32 Crane first contends that the trial court erred in finding that the parties could not use the
ACC to determine that Kemper’s primary policies had been exhausted by November 2004.
Crane argues that if this court finds that the ACC properly amended the limits of Kemper’s
primary policies, defendants concede that exhaustion occurred in November, 2004. This
concession is found in the CNA defendants’ reply to its motion for partial summary judgment
seeking a declaration that Crane must stand in the shoes of Kemper and the original policy
limits in proving exhaustion of the primary policies. Therein, CNA states a position it might
take for the sake of argument if the trial court finds in favor of Crane on the ACC issue. CNA
noted that “even without the ACC, under a Zurich v. Raymark trigger, Crane can demonstrate
that exhaustion occurred by November, 2004.” However, in the accompanying footnote CNA
explicitly states that “[i]f the Court’s judgment is overturned on appeal, the CNA Defendants
reserve the right to argue that the ACC is not in good faith and that exhaustion has not
occurred.” Therefore, defendants did not concede without qualification that Crane has proved
exhaustion under the ACC and we will address this issue on the merits.
¶ 33 On appeal, the main point of contention between the parties regarding the ACC is
whether its provision allowing previously excluded defense costs to erode the policy limits
applies to prove exhaustion, or whether the original policy limits still apply. In its April 12,
2006, order the trial court found that Kemper and Crane could enter into an agreement
(ACC) retroactively amending Kemper’s post-1986 policies, since no excess insurers issued
policies to Crane after 1986 and their rights therefore were not affected. The trial court
questioned the validity of sections five and six of the ACC, but determined in its November
20, 2006, order that those sections are severable without affecting the remainder of the ACC
and other agreements. It further determined that “Crane may use the ACC in demonstrating
exhaustion at the Exhaustion Trial. Whether the primary layer of coverage is exhausted will
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be determined after the Exhaustion Trial based upon the principles of the doctrine of
horizontal exhaustion.” In 2004, Crane agreed to fully release Kemper’s liability under its
primary policies in exchange for payment of $10 million. In 2006, Crane entered into a
second settlement agreement, releasing Kemper from all remaining obligations under both
its primary and excess policies. Both settlements provided that the ACC was still in effect.
See John Crane Inc. v. Admiral Insurance Co., 391 Ill. App. 3d 693, 696 (2009).
¶ 34 In challenging the validity of the ACC on appeal, CNA defendants argue only that
Kemper and Crane did not enter into the ACC in good faith. Instead, the ACC was intended
“to result in the premature exhaustion of the Kemper primary policies to the prejudice of the
excess carriers.” In alleging a bad-faith claim, defendants must show that Kemper and Crane
owed the excess insurers a duty to act in good faith. See Haddick v. Valor Insurance, 198 Ill.
2d 409, 417 (2001) (“[t]o survive a motion to dismiss a bad-faith claim, the plaintiff must
allege facts sufficient to establish the existence of the duty to settle in good faith”). Whether
a duty exists under a particular set of facts is a question of law for the courts to decide. Mt.
Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116 (1995).
¶ 35 The duty to settle in good faith arises “when a claim has been made against the insured
and there is a reasonable probability of recovery in excess of policy limits and a reasonable
probability of a finding of liability against the insured.” Haddick, 198 Ill. 2d at 417.
Furthermore, the duty does not arise until a third party “demands settlement within policy
limits.” Id. In the case at bar, the injured parties’ demands for settlement greatly exceed the
primary policy limits. Therefore, pursuant to Haddick, no plausible claim of bad faith can be
made against Kemper and Crane. Both the trial court and CNA defendants rely on Schal
Bovis, Inc. v. Casualty Insurance Co., 314 Ill. App. 3d 562 (1999), to support the position
that primary insurers owe a duty to excess insurers to act in good faith. However, Schal Bovis
involved an action filed by an excess insurer against four primary insurers which had refused
to settle an action against the insured for an amount under the primary policies’ limits. The
appellate court held that an excess carrier may bring a cause of action against a primary
carrier for bad-faith refusal to settle. Schal Bovis, 314 Ill. App. 3d at 571. As in Haddick,
Schal Bovis only concerned an alleged bad faith refusal to settle.
¶ 36 All appellee insurers complain that Kemper and Crane refused to settle claims made
against Crane even when they were well founded. However, as previously pointed out, Crane
has been named as a defendant in over 250,000 asbestos-related bodily injury claims
throughout the United States. Further, at the exhaustion trial, the parties stipulated that
Kemper had primary policy limits of $41,750,000 for the period from 1944 to 2001. Under
the circumstances, it cannot plausibly be argued that Crane and Kemper’s no-settlement
policy resulted in the policies of the umbrella or excess insurance carriers being prematurely
implicated due to Crane’s and Kemper’s bad-faith refusal to settle. Consequently, neither
Haddick nor Schal Bovis supports appellees’ arguments.
¶ 37 Crane asserts that Kemper and Crane entered the ACC to address issues arising from
Kemper’s defense of Crane in the underlying asbestos litigation. The ACC amended
Kemper’s post-1986 primary policies to include previously excluded defense costs in the
policy limits, and to establish Kemper’s commitment to a no-settlement strategy. Crane
argues that parties to an insurance contract may amend the terms of the policy, and the excess
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carriers are not parties to the insurance contract between Kemper and Crane, or to the ACC.
Furthermore, there is no evidence that the umbrella or excess carriers relied on any
representations made by Crane or Kemper after 1986. See Bourgonje v. Machev, 362 Ill.
App. 3d 984, 1000-01 (2005). Crane argues that the excess carriers therefore lack
“contractual standing to object to the ACC’s defense cost terms relating to Kemper’s post-
1986 policies.” Crane argues that the trial court correctly determined that “Crane may use the
ACC in demonstrating exhaustion.”
¶ 38 We are not persuaded by Crane’s contention that the excess carriers lack standing to
object to the ACC. “The doctrine of standing ensures that issues are raised only by parties
having a real interest in the outcome of the controversy.” Powell v. Dean Foods Co., 2012
IL 111714, ¶ 35. A party demonstrates standing by showing some injury to a legally
cognizable interest. Id. The ACC explicitly amended the limits of Kemper’s primary policies
from $2 million per year excluding defense costs to $2 million per year including defense
costs. This change in the primary policy limits clearly affects a legally cognizable interest of
the excess and umbrella insurers.
¶ 39 The trial court determined whether policy limits under the original policies or under the
policies as amended by the ACC applied to prove exhaustion. Pursuant to the 2006
settlement agreement, Crane released Kemper from all potential remaining obligations under
Kemper’s primary and umbrella policies for a lump-sum payment. In return, Crane agreed
to undertake any obligations Kemper might have had under the policies. The trial court
determined that although Crane could use the ACC to show exhaustion, it was responsible
for the limits as provided for in Kemper’s original policies, not as amended by the ACC or
the settlement agreement.4 It based its determination on the doctrine of horizontal exhaustion,
citing U.S. Gypsum’s language that the insured “must exhaust all available primary coverage
before proceeding against an excess carrier when that carrier’s policy contains an ‘other
insurance’ clause.” United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App. 3d
598, 654 (1994). The trial court concluded that the horizontal exhaustion doctrine does not
allow an insured and its primary insurer to make the original policy limits unavailable simply
by entering into agreements that retroactively amend the policies.
¶ 40 Our supreme court addressed the horizontal exhaustion doctrine most recently in Kajima
Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227 Ill. 2d 102 (2007)
(Kajima II). The underlying claim in Kajima involved a worker injured on a construction
site. The worker sued the general contractor, Kajima. Kajima tendered the claim to St. Paul
Fire & Marine Insurance Company. St. Paul eventually paid $2 million of the $3 million
settlement. Kajima also had a primary commercial general liability (CGL) policy with Tokio
Marine & Fire Insurance. Tokio paid its $1 million policy limits as part of the settlement.
Tokio and Kajima then filed a declaratory judgment action against St. Paul seeking
reimbursement of the $1 million, arguing that Kajima’s selective tender of the entire claim
4
The 2006 settlement agreement states that the applicable limits of Kemper’s primary
policies “have been exhausted” and payments of approximately $60 million have been made under
Kemper’s excess policies.
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to St. Paul made the Tokio policy unavailable.
¶ 41 The appellate court affirmed the circuit court’s entry of summary judgment for St. Paul
and against Tokio. In doing so, the appellate court held:
“The requirement of horizontal exhaustion has been addressed and applied by Illinois
courts on several occasions. United States Gypsum, 268 Ill. App. 3d at 598; Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 283 Ill. App. 3d 630, 642-43 (1996);
Roman Catholic Diocese of Joliet, Inc. v. Lee, 292 Ill. App. 3d 447, 456-57 (1997);
Missouri Pacific R.R. Co. v. International Insurance Co., 288 Ill. App. 3d 69, 80-81
(1997); Illinois Central R.R. Co. v. Accident & Casualty Co. of Winterthur, 317 Ill. App.
3d 737, 753 (2000); Maremont Corp. v. Continental Casualty Co., 326 Ill. App. 3d 272,
279-80 (2001). In each case, this court held that the insured must first exhaust all
available primary insurance coverage, including uninsured periods and self-insured
periods, before an excess policy could be invoked.” Kajima I, 368 Ill. App. 3d at 670.
¶ 42 In affirming the appellate court, the supreme court discussed the nature of excess
insurance and the horizontal exhaustion doctrine, which “originated in cases involving a
continuous tort or long-term environmental and hazardous waste claims.” Kajima II, 227 Ill.
2d at 113. The court explained that “when excess insurance exists as part of an overall
insurance package, it provides a secondary level of coverage to protect the insured where a
judgment or settlement exceeds the primary policy’s limits of liability. [Citation.] Excess
insurance coverage attaches only after a predetermined amount of primary insurance or self-
insured retention has been exhausted. [Citation.] Consequently, until the limits of primary
coverage are exhausted, secondary coverage does not provide any collectible insurance.
[Citation.] Once an excess policy is triggered in a case, the limits of the primary insurance
must be exhausted before the excess carrier will be required to contribute to a settlement or
judgment.” (Internal quotation marks omitted.) Kajima II, 227 Ill. 2d at 114-15. Further,
citing the holding in U.S. Gypsum, the court explained that excess policies may provide that
they are excess to “ ‘all triggered primary policies, regardless of whether they extend over
multiple policy periods or only one.’ ” (Emphasis omitted.) Kajima II, 227 Ill. 2d at 114
(quoting U.S. Gypsum, 268 Ill. App. 3d at 653). The holding in Kajima II fully supports the
trial court’s ruling that, at the exhaustion trial, Crane had to prove that Kemper (and therefore
Crane) had exhausted all the triggered primary policies before the umbrella or excess carriers
would be required to contribute to any settlement or judgment.
¶ 43 Crane argues that as the appellee umbrella and excess insurers did not provide coverage
for periods after 1986 and they did not rely on any representations made by Crane or Kemper
after 1986, they cannot accuse Crane or Kemper of bad faith for entering into the 2002 ACC.
Indeed, Crane argues that the umbrella and excess carriers greatly benefitted by Kemper
providing primary and excess insurance to Crane after 1986. This argument, although
factually true, misses the point. As explained in Kajima II, the horizontal exhaustion doctrine
requires Crane to prove that all of the triggered primary policies had been exhausted before
the umbrella or excess carriers could be required to contribute to any settlement or judgment.
Crane fails to cite any case for the proposition that, after a primary policy has been triggered,
an insured and a primary insurer may make an agreement which lessens the amount of
primary insurance required to be exhausted before umbrella or excess insurance policies are
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implicated. In the trial court, Crane argued that, as of their 2004 settlement agreement with
Kemper, not only were all primary insurance policies triggered, they were exhausted. Crane,
however, made no argument that any of its primary policies were not triggered at the time
they entered into the ACC. We affirm the trial court’s holding that the horizontal exhaustion
doctrine requires Crane to prove that all of Kemper’s primary policy limits, as written before
the parties entered into the ACC, were exhausted before the umbrella or excess carriers
would be required to contribute to any settlement or judgment.
¶ 44 II. Pro Rata Allocation
¶ 45 Crane next contends that the trial court erred in holding that the excess insurers could
utilize a pro rata allocation in determining the amount for which each carrier is liable. Crane
argues that the holding in Zurich requires that each excess carrier be held jointly and
severally liable for all judgments arising during any excess policy period.
¶ 46 The policies at issue in Zurich provided:
“ ‘I. COVERAGE A–BODILY INJURY LIABILITY
***
The company will pay on behalf of the insured all sums which the insured shall
become legally obligated to pay as damages because of
Coverage A. bodily injury ***
***
*** caused by an occurrence ***.’ ” Zurich, 118 Ill. 2d at 33.
The policies also set forth the following definitions:
“ ‘ “ bodily injury” means bodily injury, sickness or disease ***.
***
“occurrence” means an accident, including injurious exposure to conditions, which
results during the policy period, in bodily injury *** neither expected nor intended from
the standpoint of the insured.’ ” Zurich, 118 Ill. 2d at 33.
¶ 47 The court held:
“ ‘Bodily injury,’ which gives rise to the insurer’s duties under the policies, is defined
as ‘bodily injury, sickness or disease.’ The circuit court and the appellate court correctly
concluded that these terms must be read as separate and distinct triggers of coverage.
Thus, under the plain and unambiguous language of the policies, an insurer must provide
coverage for a claim if the claimant sustained ‘bodily injury’ or ‘sickness’ or ‘disease’
during the policy period. Having concluded that each of these events triggers coverage,
the inquiry becomes when ‘bodily injury,’ as defined in the policy, occurs.
***
*** The evidence in the record amply supports the circuit court’s finding that ‘bodily
injury’ occurs when asbestos fibers are inhaled and retained in the lung. We therefore
conclude that an insurer whose policy was in force at the time a claimant was exposed
to asbestos must provide coverage of that claim.
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As we have already noted, ‘sickness’ and ‘disease’ are included within the policy
definition of ‘bodily injury,’ and therefore, also trigger coverage.” Zurich, 118 Ill. 2d at
44-45.
¶ 48 Zurich asked the supreme court to adopt the pro rata approach set forth in Insurance Co.
of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980), aff’d on
rehearing, 657 F.2d 814 (6th Cir. 1981). The appellate court had rejected this argument,
finding that nothing in the policy language permitted proration. The supreme court held:
“In Forty-Eight Insulations, the court held that the insurers’ obligations under their
respective policies were triggered only by a claimant’s exposure to asbestos during a
policy period. From this premise, that court concluded that the exposure theory provided
a reasonable means of allocating the costs of defense and indemnification among the
triggered policies based on the number of years of exposure. As already noted, unlike
Forty-Eight Insulations, this court has held that an insurer must afford Raymark coverage
of a claim if the claimant suffers bodily injury or sickness or disease during a policy
period. Having rejected the premise underlying the pro rata allocation approach adopted
in Forty-Eight Insulations, we conclude that the appellate court did not err insofar as it
declined to order the pro rata allocation of defense and indemnity obligations among the
triggered policies.” (Emphases in original.) Zurich, 118 Ill. 2d at 57.
¶ 49 Before us, the appellee insurers argue that Zurich did not preclude the trial court from
applying the pro rata time-on-the-risk allocation method in determining the amount owed
by the excess insurers to the insured as damages. The appellees rely on several appellate
court cases, including Outboard Marine Corp. v. Liberty Mutual Insurance Co., 283 Ill. App.
3d 630 (1996), and Federal Insurance Co. v. Binney & Smith, Inc., 393 Ill. App. 3d 277
(2009). In Outboard Marine, the insured manufacturing company sought a declaratory
judgment that its CGL insurers had breached their duty to defend the company against suits
filed by governmental agencies for water pollution. On remand from the supreme court
(Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (1992)), the
appellate court affirmed the trial court’s application of the time-on-the-risk approach
application to assign a pro rata share to each excess insurer based on its finding of a
continuous trigger. In doing so, the appellate court distinguished the holding in Zurich based
on the fact that Zurich involved bodily injury and did not involve coverage for excess
insurance. Outboard Marine, 283 Ill. App. 3d at 641. The court then considered and adopted
the holding in U.S. Gypsum.
¶ 50 In U.S. Gypsum, the court addressed the issue of the appropriate trigger of coverage for
asbestos property damage claims involving primary and excess insurance. The Gypsum court
recognized that “bodily injury” and “property damage” are two distinct concepts which may
require different characterizations of their respective coverage triggers. In adopting a
continuous-trigger theory, the court found support from the Zurich decision and noted:
“ ‘Conceptually, the injury-in-fact trigger and the continuous trigger are on the
same continuum and are complimentary, rather than mutually exclusive.
Accordingly, courts have stated that “where injury-in-fact occurs continuously over
a period covered by different insurers or policies, and actual apportionment of the
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injury is difficult or impossible to determine, the continuous injury trigger may be
employed to equitably apportion liability among insurers.” ’ Gypsum, 268 Ill. App.
3d at 644, quoting Sentinel Insurance Co. v. First Insurance Co. of Hawai’i, Ltd., 76
Haw. 277, 300, 875 P.2d 894, 917 (1994).
We find the Gypsum court’s rationale persuasive in applying the continuous-trigger
theory and further find that the trial court correctly applied it to the facts of the instant
case by finding that all of the policies were triggered and that the contamination of
Waukegan Harbor amounted to a single continuing occurrence.” Outboard Marine, 283
Ill. App. 3d at 641-42.
¶ 51 In Federal Insurance Co. v. Binney & Smith, Inc., 393 Ill. App. 3d 277 (2009), Binney
manufactured Crayola brand crayons. The packaging used said the crayons were “non-toxic.”
Id. at 280. A class action lawsuit was filed against Binney, alleging that there were “above
trace-level” amounts of asbestos in the crayons. Id. The lawsuit sought as damages a small
percentage of the purchase price of the crayons because of the false-labeling claim of
nontoxicity. Binney filed a declaratory action against Federal, seeking indemnification under
Federal’s CGL policies which insured against advertising injury. The appellate court held
that “[b]ecause Federal provided Binney advertising injury coverage during only 3 years of
the approximately 30-year period at issue here,” Federal should not be liable for more than
approximately one-tenth of the total settlement under a pro rata time-on-the-risk formula.
Id. at 295. In doing so, the court relied upon the holding in AAA Disposal Systems, Inc. v.
Aetna Casualty & Surety Co., 355 Ill. App. 3d 275 (2005), another excess insurance policy
case involving property damage claims. The court noted that the holding in Zurich involved
bodily injury and asserted that “[a] policy period limitation to coverage is exactly what was
missing from the insurance contacts at issue in Zurich, allowing for the proper application
of joint and several liability under the ‘all sums’ rule.” Federal Insurance, 393 Ill. App. 3d
at 292-93. As previously explained in this opinion (supra ¶ 46), the policies at issue in
Zurich did contain language limiting coverage to injuries occurring during the policy periods.
¶ 52 Appellees strongly rely on the Second District’s holding in Missouri Pacific R.R. Co. v.
International Insurance Co., 288 Ill. App. 3d 69 (1997). Missouri Pacific involved two
questions certified by the trial court pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb.
26, 2010). The case involved a declaratory action filed by the railroad against four of its
excess CGL insurers. The underlying claims sought damages on behalf of thousands of
railroad employees for hearing loss allegedly caused by continuous and repeated exposure
to unsafe levels of noise. In addition, hundreds of employees brought claims against the
railroad seeking damages for asbestos-related injuries allegedly caused by continuous and
repeated exposure to unsafe levels of asbestos over many decades. Missouri Pacific, 288 Ill.
App. 3d at 72.
¶ 53 The trial court certified two questions including:
“ ‘1. Whether the “all sums” rule set forth by the Illinois Supreme Court in Zurich
Ins. Co. v. Raymark Industries, Inc., 118 Ill. 2d 23 (1987) or the pro-rata by time-on-the-
risk theory articulated in Outboard Marine Corp. v. Liberty Mutual Insurance Co., [283
Ill. App. 3d 630 (1996),] governs allocation of coverage where the Circuit Court has
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found that noise-induced hearing loss claims constitute a single occurrence, and further
has found that asbestos-exposure claims constitute a single occurrence ***.’ ” Missouri
Pacific, 288 Ill. App. 3d at 74-75.
¶ 54 The Second District court answered this question as follows:
“We read nothing in Zurich as precluding the application of the pro rata, time-on-
the-risk allocation method announced in Outboard Marine to the case at bar. Zurich’s
rejection of a pro rata approach was based on the narrow facts of the case before it,
namely, that it had rejected the trigger analysis set forth in Forty-Eight Insulations. The
court did not adopt a general rule forever precluding the application of a pro rata
approach. As we explained in Outboard Marine, such an approach is appropriate where,
as here, a single continuous occurrence results in an unallocable loss implicating
successive policy periods.
Our answer, then, to the first certified question is twofold. First, the parties should
be given the opportunity to present evidence that NIHL [(hearing loss)] may (or may not)
be measured and allocated, within a reasonable degree of medical and scientific certainty,
to particular policy periods. IF NIHL cannot be allocated, then the court should apply the
pro rata, time-on-the-risk allocation method adopted in Outboard Marine.
Finally, we add that the parties’ arguments regarding the first certified question
almost exclusively focused on the NIHL claims. Our consideration of the first question
tracts this approach. However, our reasoning applies equally to the NIHL claims and
asbestos-exposure claims.” Missouri Pacific, 288 Ill. App. 3d at 79-80.
¶ 55 We note that the Second District in Missouri Pacific relied upon its own recent holding
in Outboard Marine. As previously noted, Outboard Marine relied heavily upon the holding
in U.S. Gypsum. The U.S. Gypsum court “recognize[d] that ‘bodily injury’ and ‘property
damage’ are two distinct concepts which may require different characterizations of their
coverage triggers.” U.S. Gypsum, 268 Ill. App. 3d at 640. In addition to the language of U.S.
Gypsum previously quoted in Outboard Marine, we find the following language particularly
enlightening:
“Our decision is consistent with the basic principles announced in Zurich and Wilkin.
The supreme court’s use of a triple trigger in Zurich recognizes that multiple policy
periods can be triggered by the evolving nature of an illness resulting from the exposure
to asbestos. Similarly, our application of a continuous trigger recognizes that the property
damage that results from the release of asbestos fibers and the reentrainment of asbestos
fibers is a continuing process which necessarily occurs over multiple policy periods. The
Zurich decision looks beyond the discrete event of the manifestation of the disease as the
sole trigger. Similarly, the seductive appeal of a single discovery trigger must bow to the
policy language as well as to the empirical realities and other general equitable
considerations of reasonableness and fairness.” U.S. Gypsum, 268 Ill. App. 3d at 646.
¶ 56 Although not all of the umbrella or excess policies at issue here contain the “all sums”
language found in Zurich, they provide for payment of the amount of loss in excess of the
loss payable by the underlying policies based on the language in the underlying primary
policies which do contain the “all sums” language. As in the policies in Zurich, the parties
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do no assert that any of the policies at issue permit pro rata application. The trial court below
ruled, and defendants argue, that a pro rata allocation is warranted because the “during the
policy period” language defines when there is an “occurrence” which implicates a specific
policy or policies. However, the language “during the policy period” was also found in the
policies in Zurich and our supreme court therein declined to order a pro rata allocation of
liability. We adhere to our supreme court’s decision in Zurich and hold that where coverage
for asbestos-related injury claims is triggered by bodily injury or sickness or disease, all
triggered policies are jointly and severally liable. In one of the appellees’ petitions for
rehearing, it is urged that our “jointly and severally liable” holding is a misplaced notion of
tort liability that has “no place in the proper interpretation” of this insurance case. To the
contrary, joint and several liability has been applied in numerous insurance cases and is most
appropriate in this one. See Sentinel Insurance Co. v. First Insurance Co. of Hawai’i, Ltd.,
875 P.2d 894, 915 (Haw. 1994); U.S. Gypsum, 268 Ill. App. 3d at 644; Benoy Motors Sales,
Inc. v. Universal Underwriters Insurance Co., 287 Ill. App. 3d 942, 948 (1997). We do not
conclude that all carriers are jointly and severally liable without regard to a particular policy
period. Only those carriers providing policies for the period at issue will be liable. Only
triggered policies are jointly and severally liable for all sums that the insured becomes legally
obligated to pay as a result of asbestos bodily injury claims. Obviously, policies that are not
triggered pay nothing. Uninsured periods are irrelevant as only carriers providing policies for
the period at issue will be liable. There are no credits for uninsured years. Policies that are
triggered pay “all sums” up to their limits. This determination is based on the contract law
principle that it would be unfair to allocate the damages to an insurer “that did not agree to
provide coverage during” a particular period of time. AAA Disposal, 355 Ill. App. 3d at 288
(citing Outboard Marine, 283 Ill. App. 3d at 642-44).
¶ 57 III. Exhaustion
¶ 58 Crane’s final contention is that the trial court erred in finding that Zurich requires proof
of all three triggers (exposure, sickness, and disease) in order to determine the exhaustion of
policy limits. On cross-appeal, CNA argues that the trial court erred in determining that
under Zurich, “bodily injury” occurs at the time of exposure. CNA also requests that this
court revisit Zurich and find that no one can determine when injury first begins, and that an
equitable continuous trigger over all dates between exposure and diagnosis or death should
apply to prove exhaustion. Since these contentions all relate to Zurich’s trigger analysis, we
will address them together. The trial court’s interpretation of Zurich is a question of law we
review de novo. In re A.H., 207 Ill. 2d 590, 593 (2003).
¶ 59 As discussed above, Zurich specified three triggers for coverage for asbestos-related
injuries: bodily injury, sickness, and disease. Bodily injury occurs upon exposure to asbestos.
Zurich, 118 Ill. 2d at 45. Disease begins as of the date of diagnosis or death, and sickness is
defined as ill-health, or when a person suffers from a weakened or unsound condition. Id. at
45-47. Since there was no consistent evidence in the record to show a progression of the
disease between exposure and sickness, the supreme court in Zurich rejected the conclusion
that injury occurred in that time period. Id. at 47. In the case before us, the trial court held
a medical trial to determine whether medical technology and knowledge had advanced from
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the time of Zurich to show injury during the period between exposure and sickness. It
determined that medical knowledge had not advanced to the extent injury could be proven
during that time period and concluded that the triple triggers of Zurich still applied.
However, the trial court noted that our supreme court “did not clarify whether all the insured
had to do was prove one of the three triggers.” It concluded that the supreme court “intended
for the insured to establish trigger dates” for all three triggers.
¶ 60 Although our supreme court did not clarify whether an insured had to prove all three
triggers for coverage, it is clear from the wording in Zurich that the court did not intend such
a result. Our supreme court stated that “[t]he circuit court and the appellate court correctly
concluded that these terms must be read as separate and distinct triggers of coverage” and
that “each of these events triggers coverage.” (Emphasis added.) Id. at 44. The court then
looked at each trigger, first concluding that bodily injury “occurs when asbestos fibers are
inhaled and retained in the lung” and a policy in force at the time of a claimant’s exposure
“must provide coverage of that claim.” Id. at 45. It further found that sickness or disease
were “also” triggers for coverage. Id. at 45-46. Appellees argue that the trial court applied
all three Zurich triggers only in determining whether all triggered primary policies had been
exhausted. Appellees’ argument fails as neither Zurich nor any other cited case requires an
insured to prove the dates for all three possible triggers before they settle a claim which, as
a consequence, reduces the amount of primary coverage that remains available before
exhaustion. We conclude that Zurich does not require an insured to prove all three triggers
for coverage and that coverage is triggered upon proof of exposure, sickness, or disease. A
policy holder or primary insurer must show that all triggered primary policies are exhausted
before any excess insurance policies can be required to respond to the claim. Exhaustion
occurs when there are no other triggered primary policies available to cover the payments.
Kajima II, 227 Ill. 2d at 114-15.
¶ 61 In its petition for rehearing, CNA argues that Crane has the burden to prove the specific
dates on which the various policies at issue are triggered. While CNA appears to concede
that the evidence proving some of those dates simply does not exist for every claim and that
it might not be possible to pinpoint a date when an underlying plaintiff suffers from
“sickness,” it argues:
“Obviously, if a claimant is injured by exposure to [Crane’s] asbestos–as must be the
case since all of the relevant underlying claims involved judgments against [Crane]–there
must be a beginning and an end of exposure. There is no option. Likewise, if the claimant
has a disease–as he must to recover a judgment–there must be a date of disease. Thus,
these dates must be shown.” (Emphasis in original.)
While some of these suppositions may arguably be true, CNA does not cite any evidence or
any case law supporting them. For the reasons described above, we are not persuaded by and
reject CNA’s argument on this issue.
¶ 62 IV. Cross-Appeal
¶ 63 A. Definition of Bodily Injury
¶ 64 On cross-appeal, CNA argues that the trial court erred in determining that under Zurich,
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“bodily injury” occurs at the time of exposure. CNA contends Zurich’s finding that exposure
to asbestos constitutes bodily injury is not one of law, but is a determination that must be
made on a case-by-case basis. CNA argues that the parties in Zurich “conceded” that
exposure results in bodily injury, but in this and other cases the event resulting in bodily
injury is open to interpretation. CNA requests that this court revisit the issue and find, based
upon new medical evidence, that “bodily injury” occurs with the first mutation that
eventually results in cancer. It points to Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009), as
evidence that our supreme court has begun to question whether bodily injury occurs upon
initial exposure to asbestos. However, our supreme court in Nolan did not revisit the issue
of exposure as a trigger for asbestos-related injury as CNA claims. Rather, the issue in Nolan
involved whether a claimant’s bodily injury was proved by exposure to asbestos-containing
products when evidence suggested the claimant was also exposed to asbestos from other
sources. Id. at 419-20.
¶ 65 We decline CNA’s request to revisit the issue because, as this court stated in U.S.
Gypsum, this evidence of injury “has no bearing on the insurance coverage issue before us.”
(Internal quotation marks omitted.) U.S. Gypsum, 268 Ill. App. 3d at 623. The question
before us is one of insurance coverage, not liability. “The challenge by the insurers in a
coverage action may therefore not address the issue as to whether the underlying plaintiffs
sustained damage for which the insured is liable. That was the subject of the underlying
action. The coverage action may only address whether the damage in question falls within
the coverage provisions of the policies.” Id.
¶ 66 In Zurich, our supreme court noted that the evidence at trial showed that asbestos-related
diseases “originate with the inhalation of asbestos fibers, and, the continued inhalation of
asbestos causes additional injuries which eventually culminate in a disease.” (Emphasis in
original.) Zurich, 118 Ill. 2d at 47. The court concluded that bodily injury “takes place at or
shortly after the time a claimant was exposed to asbestos and continues throughout a
claimant’s exposure to asbestos.” Id. Furthermore, in summarizing its findings, our supreme
court in Zurich concluded only that the triggers of disease and sickness “must be determined
on a case-by-case basis.” Id. at 47-48. We continue to follow Zurich’s holding that bodily
injury occurs upon exposure to asbestos, and “an insurer that was on the risk during the time
the claimant was exposed to asbestos must provide coverage.” Id. at 47.
¶ 67 B. Equitable Continuous Trigger
¶ 68 CNA also requests that this court revisit Zurich and find that no one can determine when
injury first begins, and that an equitable continuous trigger over all dates between exposure
and diagnosis or death should apply to prove exhaustion. A continuous trigger is useful in
cases “where injury-in-fact occurs continuously over a period covered by different insurers
or policies, and actual apportionment of the injury is difficult or impossible to determine.”
(Internal quotation marks omitted.) Gypsum, 268 Ill. App. 3d at 644.
¶ 69 Our supreme court in Zurich addressed this issue as it relates to asbestos-related personal
injury. It found that, according to the expert testimony on record, there is no evidence that
a claimant suffers continuous injury from the time of initial exposure to sickness or disease.
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Zurich, 118 Ill. 2d at 47. Rather, the expert testimony revealed “that asbestos-related disease
may or may not progress during periods of nonexposure” and “there are cases in which the
disease progresses during periods of nonexposure and cases in which there is no
progression.” Id. Our supreme court found no continuing bodily injury from the time
“exposure to asbestos ends and the time an asbestos-related disease becomes diagnosable.”
Id. at 46. No new evidence presented before the trial court below challenged this finding in
Zurich. Once our supreme court has declared the law with respect to an issue, this court must
follow that law, as only the supreme court has authority to overrule or modify its own
decisions. Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828, 836 (2004).
We therefore decline CNA’s invitation to revisit this issue.
¶ 70 Both sides on appeal also raised various evidentiary issues related to the exhaustion trial
below. Due to our disposition of the case, we need not address those issues at the present
time.
¶ 71 We remand the cause for determination of exhaustion based upon this opinion. On
remand, pursuant to the “horizontal exhaustion doctrine,” Crane must prove that all of the
post-1986 primary insurance policies’ original limits, without regard to the ACC, have been
exhausted before the umbrella or excess coverage policies are implicated. Also, for claims
of asbestos-related personal injury, all triggered excess or umbrella policies are jointly and
severally liable for payment up to their limits. Finally, Crane need not prove all three of the
triggers for coverage outlined in Zurich. Instead, coverage for asbestos-related personal
injury claims is triggered upon proof of exposure, sickness, or disease. We reject CNA’s
request to use an equitable continuous trigger as our supreme court addressed this issue in
Zurich and determined that personal injury from exposure to asbestos is not a continuous
injury.
¶ 72 On remand, the trial court is to additionally consider any judgments and settlements paid
by Crane and by Kemper since the last exhaustion trial.
¶ 73 Several of the insurer-appellees have also asked this court to grant a certification of
importance under Illinois Supreme Court Rule 316 (Ill. S. Ct. R. 316 (eff. Dec. 6, 2006)), as
part of their petition for rehearing, arguing: “It is no exaggeration to say that this Court’s
decision is more important than many of the cases granting Rule 316 certification [listing six
appellate court decisions], as to the sheer number of claims and suits affected by this Court’s
determination of the issues on the merits.” It is well settled that the appellate court’s power
to certify a case to the supreme court should be used very sparingly. People v. Cherry Valley
Public Library District, 356 Ill. App. 3d 893, 900 (2005). Our supreme court is in a better
position than this court to determine whether it should accept this case for further review.
The request for certification pursuant to Rule 316 is therefore denied.
¶ 74 For the foregoing reasons, the judgment of the circuit court is affirmed in part and
reversed in part and the cause remanded for a determination consistent with this opinion.
¶ 75 Affirmed in part and reversed in part; cause remanded with directions.
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