The Village of Crestwood v. Ironshore Specialty Insurance Company , 986 N.E.2d 678 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Village of Crestwood v. Ironshore Specialty Insurance Co., 2013 IL App (1st) 120112
Appellate Court THE VILLAGE OF CRESTWOOD, an Illinois Municipal Corporation
Caption and CHESTER STRANCZEK, Individually and as a Former Mayor of
the Village of Crestwood, Plaintiff-Appellants, v. IRONSHORE
SPECIALTY INSURANCE COMPANY, WESTPORT INSURANCE
CORPORATION, and UNITED NATIONAL INSURANCE
COMPANY, Defendants-Appellees.
District & No. First District, Fifth Division
Docket Nos. 1-12-0112, 1-12-0227 cons.
Filed February 22, 2013
Held The claims against a village based on allegations that it distributed
(Note: This syllabus contaminated well water to its homes and businesses for over two
constitutes no part of decades were not covered by the village’s excess public entity general
the opinion of the court liability policies, since the absolute pollution exclusion clauses applied.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CH-49583; the
Review Hon. Mary L. Mikva, Judge, presiding.
Judgment Affirmed.
Counsel on Robert Marc Chemers, Scott L. Howie, Heather E. Plunkett, and Peter G.
Appeal Syregelas, all of Pretzel & Stouffer, Chtrd., of Chicago, for appellant
Village of Crestwood.
Chris C. Gar, John H. Mathias, Jr., Christopher C. Dickinson, and Jason
J. Green, all of Jenner & Block, LLP, of Chicago, for appellant Chester
Stranczek.
Carlos Del Campo and Mary E. Fechtig, both of Meckler Bulger Tilson
Marick & Pearson, LLP, of Chicago, for appellee Ironshore Specialty
Insurance Company.
Robert J. Bates, Jr., and Catherine M. Crisham, both of Bates Carey
Nicolaides, LLP, of Chicago, for appellee Westport Insurance
Corporation.
Edward J. Murphy, of Life Lyons Murphy Nahrstadt & Pontikas, of
Chicago, and Lawrence K. Rynning, of Law Offices of Lawrence K.
Rynning, of Wheaton, for appellee United National Insurance Company.
Panel PRESIDING JUSTICE McBRIDE delivered the judgment of the court,
with opinion.
Justices Epstein and Palmer concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs Village of Crestwood, Illinois, and the town’s former long-standing mayor,
Chester Stranczek (together Village or Crestwood), filed this declaratory judgment action
seeking a declaration that three excess public entity general liability insurers owed duties to
defend or indemnify against at least 25 individual and class action lawsuits alleging the
Village knowingly and routinely mixed cheap, polluted water into the municipal tap water
supply in order to cut municipal expenses. The defendant insurers were Westport Insurance
Corporation, as successor-in-interest to Coregis Insurance Company (Westport), United
National Insurance Company (United National), and Ironshore Speciality Insurance
Company, formerly known as TIG Speciality Insurance Company (Ironshore). The circuit
court held that the underlying claims fell within absolute pollution exclusion clauses in each
of the eight insurance contracts at issue and that this entitled the defendant insurers to
summary judgment. The Village appeals, contending the pollution exclusions should have
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been limited to claims alleging “traditional environmental pollution,” pollution originated
by the Village, or pollution exceeding maximum permitted contaminant levels for drinking
water; or should not have been applied to claims arising from the Village’s “central business
activity” of providing municipal tap water.
¶2 The Village’s practices became the subject of a nine-count civil pleading the Illinois
Attorney General filed on June 9, 2009. The Attorney General sought injunctive relief, civil
penalties, and costs against the Village, Crestwood’s current and former mayors, and Frank
Scaccia, who was the certified operator of Crestwood’s water supply between 1998 and
2008, due to their failure to comply with laws and regulations enacted for public health and
safety such as those requiring accurate reports to regulators and consumers and periodic
testing for chemical contaminants. Also, as discussed further below, two of the Village’s
liability insurers, Scottsdale Indemnity Company and National Casualty Company, filed a
coverage action in federal court alleging that pollution exclusions in their contracts precluded
coverage for the Village. Scottsdale Indemnity Co. v. Village of Crestwood, 784 F. Supp. 2d
988 (N.D. Ill. 2011). Meanwhile, the Village was proceeding in the current state court action
against liability insurers Westport, United National, and Ironshore. It appears the federal
coverage action and state coverage action proceeded simultaneously without any party
seeking stay or removal and consolidation of the actions. Thus, while the federal district
court’s decision was being reviewed in the Seventh Circuit Court of Appeals, the circuit
court of Cook County was entering judgment against the Village, and the Village was
initiating the current appeal around the same time the Seventh Circuit Court of Appeals
rendered its decision against the Village. Scottsdale Indemnity Co. v. Village of Crestwood,
673 F.3d 715 (7th Cir. 2012).
¶3 In a motion taken with the case, the three insurers here argue the federal appellate
decision triggers the doctrine of collateral estoppel and warrants dismissal of this state court
appeal. According to the doctrine of collateral estoppel, a prior adjudication precludes
litigation of an issue where (1) the issue decided in the prior case is identical to the one in
the pending suit, (2) there was a final judgment on the merits, and (3) the party against whom
estoppel is asserted was either a party or in privity with a party in the prior lawsuit. Kessinger
v. Grefco, Inc., 173 Ill. 2d 447, 672 N.E.2d 1149 (1996). Even when the threshold elements
of the doctrine are met, however, collateral estoppel will not be applied to preclude a party
from presenting a defense or claim unless it is clear that no unfairness results to the party
being estopped. Kessinger, 173 Ill. 2d at 468, 672 N.E.2d at 1158. Here, where the insurers
have proceeded in state court without any apparent attempt to stay or remove the action to
federal court, we conclude that it would be manifestly unfair to hold that the federal decision
precludes further argument in the state courts. Accordingly, we deny the insurers’ joint
motion to dismiss this appeal on grounds of collateral estoppel.
¶4 In an additional motion taken with the case, the Village asks us to strike the insurers’
appellate brief. The Village contends it was improper for the insurers to file the motion to
dismiss the appeal on collateral estoppel grounds and then file a responsive brief to the
appeal. The Village contends that by filing a motion to dismiss, the insurers chose their
course of action. The Village’s argument is not well-founded. It is not based on any rule of
appellate practice. It is based on two federal opinions that are inapposite. In Ramos v.
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Ashcroft, 371 F.3d 948, 949 (7th Cir. 2004), on the date it was supposed to be filing a
response brief, the respondent filed a motion to transfer in which it asked to be granted more
time to file a brief if the court decided to deny the motion for transfer. The court recognized
the tactic to be a self-granted extension, chastised the party, and stated that if the overdue
brief was not filed in short order, the matter would proceed on the petitioner’s brief alone.
Ramos, 371 F.3d at 950. When the same dilatory tactic was used in United States v. Lloyd,
398 F.3d 978 (7th Cir. 2005), the court reiterated its position: “ ‘If events justify a last-
minute motion concerning jurisdiction, venue, sanctions, or any other subject, then that
motion may accompany the brief; a motion is not a substitute for a brief.’ ” (Emphasis in
original.) Lloyd, 398 F.3d at 981 (quoting Ramos, 371 F.3d at 950). The insurers here were
not dilatory. The insurers filed their joint motion to dismiss and then timely filed their
response brief. Furthermore, although the practice of filing both a motion to dismiss and a
brief on the merits is not a common practice, it is a well-established one that is even
suggested by the authority the Village relies upon. Lloyd, 398 F.3d at 981 (indicating a
motion to dismiss may accompany a response brief). See also Wilson v. Evanston Hospital,
257 Ill. App. 3d 837, 838, 629 N.E.2d 589, 590 (1994) (in which the defendants’ motion to
dismiss was taken with the case and addressed prior to the substantive issues); Perry v.
Murtagh, 278 Ill. App. 3d 230, 232, 662 N.E.2d 587, 589 (1996) (indicating the defendant’s
motion to dismiss on procedural grounds was denied prior to consideration of the plaintiff’s
appeal). The Village’s motion is denied.
¶5 The underlying complaints against the Village assert various theories of liability, such
as negligence, fraud, failure to warn, wilful and wanton misconduct, and breach of contract.
The pleadings typically allege as follows. Crestwood is a Chicago suburb of approximately
11,000 residents and 550 businesses. Stranczek was Crestwood’s mayor between 1970 and
2007, and upon his retirement, he appointed one of his sons, Robert Stranczek, to fill the
post. During the senior Stranczek’s tenure in 1985 or 1986, the Illinois Environmental
Protection Agency (IEPA) notified the Village that a groundwater well the Village was using
to supply tap water to the Crestwood community was contaminated with a solvent used in
the dry cleaning industry, perchloroethylene or PCE, and other chemicals that occur when
PCE breaks down over time. Exposure to these chemicals is linked to human health issues
such as cancer, liver damage, and neurological impairment. None of these chemicals occurs
naturally in the environment. Some plaintiffs have specified that the likely source of the
toxins was a dry cleaning business located within several hundred feet of the well. Although
the IEPA told the Village it could no longer use the affected well except in emergencies and
the Village responded that it would stop distributing water from the well, the Village
subsequently began to routinely mix polluted well water with treated Lake Michigan water
it purchased from the neighboring community of Alsip and then supply the polluted
combination as the community’s tap water. Also, the Village allowed a private firm that was
investigating the dry cleaning firm to take samples from the municipal well and was
informed in mid 1998, along with the IEPA, that this additional sampling detected
contamination. Nevertheless, the Village used the well to provide up to 20% of the
community’s tap water in any given month, as a cost-saving measure. The Village continued
this secret practice for at least two decades. Because the well was reportedly not in use, the
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Village also avoided the expenses of periodically testing it for contaminants. The federal Safe
Drinking Water Act (42 U.S.C. § 300f et seq. (1976)) required the Village to annually issue
water quality reports to its customers, and in the Village’s “consumer confidence reports,”
it falsely stated that 100% of the water it was supplying was treated Lake Michigan water.
The Village ended its practice of mixing and distributing the contaminated well water and
falsely reporting to the contrary only after an anonymous tip led federal regulators to shut
down the well in 2007. IEPA sampling in October 2007 revealed vinyl chloride levels at 5.41
parts per billion, which one of the tort plaintiffs characterized as “more than twice the legal
limit for drinking water.” Another plaintiff alleged the IEPA threshold for vinyl chloride or
PCE in tap water was actually “zero or none.” Although they diverged on the specific figures,
the various plaintiffs were united in their allegations that “government authorities had found
[Crestwood’s tap water] to be contaminated with unacceptable levels of dangerous
chemicals,” the demonstrated level of toxins exceeded “the legal limit[s] for drinking water,”
the tap water “was unsafe for ordinary use and consumption,” or, simply, the tap water
contained “unwanted and unhealthy levels of dangerous toxins.” The plaintiffs alleged they
were estate representatives or resided or worked in Crestwood themselves for some or all of
the years the Village engaged in the dangerous practices and that the exposure to chemical
contamination caused and will continue to cause death, cancer and other illness and other
injuries.
¶6 In addition to suing the Village for knowingly mixing and distributing contaminated well
water with purchased lake water and misrepresenting the source of what flowed from
Crestwood’s taps, some of the plaintiffs added claims against the dry cleaning business, its
owners and employees, and the property owners. The Village focuses its appellate arguments
on allegations lodged against these latter defendants, such as the counts brought by plaintiff
Earley and plaintiff Jackowiak indicating that the dry cleaning business or its agents
negligently allowed chemicals to seep into the groundwater, failed to tell employees how to
use hazardous dry cleaning chemicals without endangering the community, and then failed
to notify the community of or remediate the contamination that was known to have occurred.
¶7 During the years the Village was engaging in these practices, it was also purchasing
public entity general liability insurance. According to the defendant insurers here, their
policies provide excess coverage to the Village for various years beginning as early as
October 1, 1989, and as late as October 1, 1993, and require the Village to exhaust the limits
of underlying policies and/or self-insured retentions. According to the Village, the policies
provide excess or umbrella coverage and include “step-down provisions providing for a duty
to defend the Village as if the policies are primary.” Regardless, it is undisputed that each of
the subject policies contains an exclusion for pollution claims, that if the claims are excluded
from coverage there are no duties to defend or indemnify, and that the circuit court’s ruling
on appeal was limited to the meaning of the exclusion clauses.
¶8 Unless a statute or rule of law or public policy mandates or prohibits certain terms or
provisions, insurers may include in their policies whatever terms they deem appropriate and
may choose to cover some risks while excluding others. See, e.g., Rich v. Principal Life
Insurance Co., 226 Ill. 2d 359, 875 N.E.2d 1082 (2007) (determining it was not against
public policy for a disability insurance policy to limit benefits by excluding injury and
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sickness and treatment or surgery for those conditions). Absolute pollution exclusions
eliminate coverage for injury or damage for a wide variety of claims. The specific theory
under which the insured is being sued is irrelevant; if injury or damage arose out of the
discharge of a pollutant, the exclusion is applied as written. Allan D. Windt, 3 Insurance
Claims and Disputes § 11:11 (5th ed. 2007); see, e.g., Economy Preferred Insurance Co. v.
Grandadam, 275 Ill. App. 3d 866, 871, 656 N.E.2d 787, 790 (1995) (rejecting argument that
exclusion did not apply because the underlying complaint alleged negligence and negligence
was covered).
¶9 The exclusion clauses at issue here differ slightly from each other but not in any material
way. The policy issued by defendant Ironshore for the October 1, 1992-93 period expressly
excludes coverage for “ ‘bodily injury or property damage’ which would not have occurred
in whole or part but for the actual alleged or threatened discharge, dispersal, seepage,
migration, release or escape of pollutants at any time.” The Ironshore policy defines the term
“pollutants” to mean “any solid, liquid, gaseous, or thermal irritant or contaminant, including
smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste.”
¶ 10 This exclusion is known as an “absolute” pollution exclusion, because insurance policies
are no longer being written to provide an exception for releases of pollutants that are sudden
and accidental. Grandadam, 275 Ill. App. 3d at 869, 656 N.E.2d at 789. From the perspective
of the insurance industry, courts were straining to find that events were “sudden and
accidental” and, therefore, covered, and the industry was coping with enormous expense and
exposure from an “ ‘ “explosion” of environmental litigation.’ ” Grandadam, 275 Ill. App.
3d at 870, 656 N.E.2d at 789 (quoting Vantage Development Corp. v. American Environment
Technologies Corp., 598 A.2d 948, 952-53 (N.J. Super. Ct. Law Div. 1991).
¶ 11 The defendant insurance companies moved for summary judgment on the basis of their
absolute pollution exclusions. After full briefing and oral argument, the circuit court judge
granted the request. This appeal by the Village followed.
¶ 12 Summary judgment is properly granted where the pleadings and any depositions
transcripts, admissions, and affidavits on file, when viewed in a light most favorable to the
nonmoving party, show that there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010). The
interpretation of an insurance policy is a question of law that is appropriately resolved in a
summary judgment proceeding. Rich, 226 Ill. 2d at 370-71, 875 N.E.2d at 1089. A reviewing
court addresses the entry of summary judgment and the interpretation of an insurance policy
de novo. Rich, 226 Ill. 2d at 370-71, 875 N.E.2d at 1089. Our task is to determine whether
the policies’ absolute pollution exclusions preclude coverage for the numerous complaints
alleging the Village knowingly mixed contaminated water into Crestwood’s public water
supply. Rich, 226 Ill. 2d at 379, 875 N.E.2d at 1094 (an exclusion takes out a person or event
otherwise included within the scope of coverage); Hartford Accident & Indemnity Co. v.
Case Foundation Co., 10 Ill. App. 3d 115, 124, 294 N.E.2d 7, 14 (1973) (“Exclusions in an
insurance policy have relevance only when there is coverage.”).
¶ 13 The Village first argues the exclusions are properly limited to claims alleging “traditional
environmental pollution” as that phrase was used in American States Insurance Co. v.
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Koloms, 177 Ill. 2d 473, 1187 N.E.2d 72 (1997). According to the Village, Koloms
determined the underlying complaints must depict the Village as an “active polluter” or an
entity that could be required to pay governmental clean-up costs pursuant to an
environmental law such as the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, which is commonly known as CERCLA or the Superfund Act. 42
U.S.C. § 9601 et seq. (1980). The Village argues the lawsuits indicate the only “actual
polluter” or entity that might be accountable for environmental cleanup is the nearby dry
cleaning business and that the Village is depicted as merely the passive, negligent distributor
of a product (tap water). The Village emphasizes that when an exclusion is relied on to deny
coverage, its applicability must be clear and free from doubt because any uncertainty must
be resolved in favor of the insured. Rich, 226 Ill. 2d at 371-72, 875 N.E.2d at 1090.
¶ 14 The Village acknowledges that its interpretation of Koloms has already been rejected in
the recent federal court declaratory judgment action concerning the duties of some of the
Village’s other liability insurers for the underlying claims. In Scottsdale Indemnity, 673 F.3d
715, the Seventh Circuit Court of Appeals discussed Koloms and the rationale for excluding
“traditional environmental pollution” from liability insurance coverage. The court remarked
that a “more perspicuous formula than ‘traditional environmental pollution’ would be
‘pollution harms as ordinarily understood.’ ” Scottsdale Indemnity, 673 F.2d at 717. The
court was attempting to make the dry insurance contract terminology more easily understood,
but the Village contends the remark was actually a rewrite of Koloms’ holding, in violation
of the principle that a federal court sitting in diversity applies state court precedent as it
would be applied in the state court. See Help at Home, Inc. v. Medical Capital, L.L.C., 260
F.3d 748, 753 (7th Cir. 2001) (“It is our duty to apply the law that we believe the Supreme
Court of Illinois would apply if the case were before this tribunal rather than before this
court.”). The Village also acknowledges that the federal court rejected the Village’s self-
portrayal as a nonpolluter that negligently sold a defective product. The Village contends the
Seventh Circuit Court of Appeals reached this result only by using “powers of clairvoyance
to decide that Village officials intentionally distributed contaminated water” and, thus, the
court improperly prejudged an issue which should be addressed in the underlying litigation.
(Emphasis in original.) See Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 940 N.E.2d 1011
(2010) (in a declaratory judgment action, the court may look beyond the underlying
complaint, but should not consider evidence that tends to determine an issue crucial to the
underlying action).
¶ 15 In Koloms, a malfunctioning furnace spread carbon monoxide fumes throughout a two-
story commercial property in Lincolnshire, Illinois, causing six tenants who inhaled the
noxious air to become ill. Koloms, 177 Ill. 2d at 476, 687 N.E.2d at 74. When the tenants
filed suit, the insurer of the building declined to provide a defense, arguing coverage was
precluded by a standard-form absolute pollution exclusion. Koloms, 177 Ill. 2d at 477, 687
N.E.2d at 74. Like the exclusions at issue here, the Koloms exclusion barred coverage for the
“discharge, dispersal, release or escape” of “pollutants” and defined “pollutants” to
encompass any gaseous “irritant or contaminant, including smoke, vapor, soot, fumes, acids,
alkalis, chemicals and waste.” (Internal quotation marks omitted.) Koloms, 177 Ill. 2d at 487,
687 N.E.2d at 78-79. The insured/building owner argued the insurer was reading its
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exclusion language too broadly and that history indicated the clause was intended to protect
insurers from having to defend and indemnify insureds in connection with governmental
clean-up costs of large scale, industrial, or commercial contamination. Koloms, 177 Ill. 2d
at 483-84, 687 N.E.2d at 77. The insured contended that because the noxious fumes inside
the commercial building were not pollution in the “traditional” sense of the word, they were
not properly excluded. Koloms, 177 Ill. 2d at 484, 687 N.E.2d at 77.
¶ 16 The trial and appellate courts agreed with the insured. The appellate court said it was
“troubled” by the “overbreadth” of the insurer’s interpretation and its attempt to exclude
bodily injuries resulting from an event which had “nothing to do with ‘pollution’ in the
conventional, or ordinary, sense of the word.” Koloms, 177 Ill. 2d at 488, 687 N.E.2d at 79.
The court reviewed cases considering the exclusion in the context of carbon monoxide, floor
sealants, cleaning compounds, insecticides, and so forth. Koloms, 177 Ill. 2d at 485-88, 687
N.E.2d at 78-79. Precedent showed that the predominant motivation for drafting the
exclusion had been to avoid the “enormous expense and exposure resulting from the
‘explosion’ of environmental litigation.” (Emphasis in original.) (Internal quotation marks
omitted.) Koloms, 177 Ill. 2d at 492, 687 N.E.2d at 81 (quoting Weaver v. Royal Insurance
Co. of America, 674 A.2d 975, 977 (N.H. 1996)). Accordingly, the court held that the
“pollution exclusion has been, and should continue to be, the appropriate means of avoiding
‘ “the yawning extent of potential liability arising from the gradual or repeated discharge of
hazardous substances into the environment.” ’ ” (Emphasis in original.) Koloms, 177 Ill. 2d
at 494, 687 N.E.2d at 81 (quoting West American Insurance Co. v. Tufco Flooring East, Inc.,
409 S.E.2d 692, 699 (N.C. Ct. App. 1991), quoting Waste Management of Carolinas, Inc.
v. Peerless Insurance Co., 340 S.E.2d 374, 381 (N.C. 1986)). See also Jeffrey W. Stempel,
Reason and Pollution: Correctly Construing the ‘Absolute’ Exclusion in Context and in
Accord With Its Purpose and Party Expectations, 34 Tort & Ins. L.J. 1, 29-32 (1998)
(indicating the absolute pollution exclusion was designed to eliminate coverage for gradual
environmental degradation and cleanup). The court concluded that the accidental release of
carbon monoxide fumes that were kept within the interior of the small commercial building
were not the “ ‘ “discharge, dispersal, release, or escape” of a pollutant *** into the
environment’ ” and did not trigger the exclusion from liability coverage. Koloms, 177 Ill. 2d
at 494, 687 N.E.2d 81-82 (quoting Tufco, 409 S.E.2d at 700).
¶ 17 Koloms’ holding was subsequently applied in Kim v. State Farm Fire & Casualty Co.,
312 Ill. App. 3d 770, 772, 728 N.E.2d 530, 531-32 (2000), where a dry cleaning machine
malfunctioned, releasing cleaning solvent onto the floor and into the soil underneath the
building. Here, the discharge of the hazardous substance was not confined within the
building. The event met the definition of traditional environmental pollution in part because
the chemical solvent (pollutant) escaped into “the land, atmosphere, or [a] watercourse or
body of water.” Kim, 312 Ill. App. 3d at 774, 728 N.E.2d at 534 (citing Koloms, 177 Ill. 2d
at 494, 687 N.E.2d at 81-82). Thus, the cleaning company’s resulting injuries, such as the
costs of replacement equipment, the new floor, the remediation expenses, and lost profits,
were excluded by the absolute pollution exclusion. Kim, 312 Ill. App. 3d at 775, 728 N.E.2d
at 534.
¶ 18 Grandadam, although it predated Koloms and Kim, also supports the conclusion that
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traditional environmental pollution occurs when hazardous material is discharged into the
land, atmosphere, or water. Grandadam, 275 Ill. App. 3d 866, 656 N.E.2d 787. The insured’s
minor son took a container of mercury from his house to the Grandadam’s house, where he
“ ‘spilled *** and scattered [the toxic material] about the interior of the residence.’ ”
Grandadam, 275 Ill. App. 3d at 868, 656 N.E.2d at 788. The alleged injuries to the occupants
and damage to the Grandadam’s home were not covered by his parent’s homeowners and
personal liability insurance, because the insurance policy included the absolute pollution
exclusion. Grandadam, 275 Ill. App. 3d at 873, 656 N.E.2d at 791. See also Housing
Authority Risk Retention Group, Inc. v. Chicago Housing Authority, 378 F.3d 596, 606 (7th
Cir. 2004) (absolute pollution exclusion barred coverage for injuries “by hazardous materials
that were ‘introduced, released and allowed to remain in the environment in Altgeld Gardens
[public housing property] by the surrounding industrial plants, abandoned factories, toxic
waste dumps, landfills and a Metropolitan Sanitary District plant,’ [citation], and by PCBs
and PAHs that CHA introduced, released, and allowed to remain in the environment in
Altgeld Gardens”); Legarra v. Federated Mutual Insurance Co., 42 Cal. Rptr. 2d 101, 103
(Cal. Ct. App. 1995) (absolute pollution exclusion barred coverage for remediating gasoline
contamination of groundwater by petroleum bulk plant).
¶ 19 Koloms and the other cases make clear that the Village’s knowing contamination of the
Crestwood water supply with chemical-laden groundwater and subsequent distribution of
that contaminated combination to the community is a textbook example of “traditional
environmental pollution.” It is undisputed that the chemicals in the Crestwood water supply
were contaminants or pollutants as those terms were used in the insurance policies at issue.
The policies define “pollutants” as “any solid, liquid, gaseous, or thermal irritant or
contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste
material.” In addition, this court has previously held that “[a] common understanding of a
pollutant is a substance that ‘pollutes’ or renders impure a previously unpolluted object, as
when chemical wastes leach into a clean water supply.” Insurance Co. of Illinois v.
Stringfield, 292 Ill. App. 3d 471, 476, 685 N.E.2d 980, 983 (1997). See also Great American
Insurance Co. of New York v. Helwig, 419 F. Supp. 2d 1017 (N.D. Ill. 2006) (absolute
pollution exclusion applied to claims alleging contamination of groundwater with PCE and
trichloroethylene). The PCE and other chemicals that were knowingly dispersed into the
Crestwood tap water supply were “pollutants” as that term has been defined by the policies
and the Illinois courts. The Village mistakenly relies on Keggi v. Northbrook Property &
Casualty Insurance Co., 13 P.3d 785 (Ariz. Ct. App. 2000), which involved naturally
occurring coliform bacteria in the water system of an Arizona golf course and on Covington
Township v. Pacific Employers Insurance Co., 639 F. Supp. 793 (M.D. Penn. 1986), which
involved giardia parasites in municipal water rather than a “pollutant” as that term is
commonly understood and defined by the policies at issue. All of the underlying complaints
against the Village are based on its contamination of the municipal tap water supply with
“pollutants” and thus are within the scope of the exclusion.
¶ 20 We find no indication in the exclusion itself or in precedent that the exclusion is limited
to clean-up costs imposed by environmental laws such as CERCLA. 42 U.S.C. § 9601 et seq.
(1980). It may be true that the exclusion was originally incorporated into liability contracts
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to protect insurers from the “yawning expanse of liability” imposed by environmental
remediation laws (see generally Koloms, 177 Ill. 2d 473, 687 N.E.2d 72), but the exclusion
is unqualified and absolute and entirely precludes coverage for bodily injuries or property
damage arising out of the discharge, dispersal, release, or escape of pollutants. The
underlying complaints allege bodily injuries or property damage arising out of the Village’s
discharge, dispersal, or release of pollutants into the community’s tap water. The exclusions
at issue apply to those claims.
¶ 21 Furthermore, we reject the Village’s attempt to portray itself as merely a negligent
distributor of groundwater contaminated by another entity. For one thing, the Village fails
to cite any portion of the record that supports its characterization as an unwitting actor. Even
the Gannon complaint, which includes a “Negligence” count against the Village and its
officials, states the defendants “a. Mixed contaminated carcinogenic water from Well 1 with
Lake Michigan water and provided, supplied or sold that water to Plaintiffs for consumption
or use, knowing that water from Well 1 was not properly tested or treated and that it had
been found to contain VOCs or other harmful contaminants when it was last tested ***.”
(Emphasis added.) We agree with the observation of the Seventh Circuit Court of Appeals:
“Initially the contamination *** was confined to the groundwater drawn by the well. But
by distributing the water to the residents of Crestwood the Village caused the *** [toxic
chemicals] to migrate throughout the Village and inflict (or so it is alleged) widespread
personal injuries, along with contamination of soil or structures that is likely to be costly
to eliminate. ***
The Village ‘caused’ the contamination of its water supply (it could have sealed the
well a quarter of a century ago, when it discovered the well was contaminated) in a
perfectly good sense of the word ***.” (Emphases added.) Scottsdale, 673 F.3d at 720.
The Village contends these remarks indicate the court was prejudging an underlying issue,
but in our opinion, the remarks accurately describe the allegations that are pending against
the Village. Furthermore, we reiterate that an absolute pollution exclusion is not limited to
intentional torts or any other particular theory of liability. The underlying complaints assert
a variety of legal theories, but according to the policies, the exclusion is triggered by the facts
or “occurrence” of bodily injury or property damage by pollutants. The clause excludes
liability for harm resulting from the dispersal or release of pollutants, not their creation or
their original distribution.
¶ 22 The Village relies heavily on Doerr v. Mobil Oil Corp., 2000-0947 (La 12/19/00), 774
So. 2d 119, in which the Louisiana Supreme Court adopted that jurisdiction’s test for
determining the applicability of a “total” pollution exclusion. The claims at issue in Doerr
arose out of a “hydrocarbons discharge” by a petroleum refinery into the Mississippi River
in January 1998 and the contaminants were then unknowingly drawn into the water treatment
system of St. Bernard Parish and distributed through the local tap water supply over a period
of several days. Doerr, 2000-0947, at 1 (La. 12/19/00); 774 So. 2d at 122. The Village does
its best to persuade us that Doerr is consistent with Koloms and involves “strikingly similar
facts.” However, we are bound to follow the test set out by our own state supreme court in
Koloms and we do not consider the short-term spill that occurred in Chalmette, Louisiana,
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to even remotely resemble what is alleged to have occurred in Crestwood. There is no
question that the Village is accused of knowingly adulterating treated Lake Michigan water
with contaminated well water and dispersing that polluted tap water to Crestwood homes and
businesses for more than two decades.
¶ 23 We also reject the Village’s contention that the pollution exclusions do not apply when
alleged emissions are within permitted legal standards, even where the insured is an active
polluter. The Village is arguing that the contaminant levels were below the maximum
amounts permitted by the Safe Drinking Water Act (42 U.S.C. § 300f et seq. (1976)) or other
environmental regulations. The Village, however, did not have a permit to distribute any
water from the contaminated well. The facts do not support the Village’s contention.
¶ 24 Finally, the Village is arguing that its liability insurance coverage would be meaningless
if it did not encompass its “central business activity” of distributing municipal tap water. The
Village bases this argument on Tufco, 409 S.E.2d 692. We fail to comprehend how the
Village could take advantage of the “central business activity” concept when it is not the
Village’s central business activity to work with the chemicals that contaminated the well.
Moreover, in Koloms, the Illinois Supreme Court discussed the Tufco decision, but did not
adopt its holding, and we are not persuaded to adopt it here.
¶ 25 For these reasons, the circuit court’s ruling against the Village and in favor of the insurers
is affirmed.
¶ 26 Affirmed.
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