In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3032
ACE A MERICAN INSURANCE C OMPANY,
Plaintiff-Appellant,
v.
RC2 C ORPORATION, INC., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 5037—William T. Hart, Judge.
A RGUED D ECEMBER 10, 2009—D ECIDED A PRIL 5, 2010
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. RC2 Corporation, Inc. and
related entities (collectively “RC2”) design and market
toys that are primarily manufactured in China. ACE
American Insurance Company issued commercial gen-
eral liability policies to RC2 covering the period from
August 1, 2003 to November 1, 2007. The policies ex-
cluded coverage of occurrences that took place within
2 No. 09-3032
the United States. Notwithstanding this exclusion, the
district court found that the policies potentially ex-
tended coverage to injuries that occurred in the United
States, if some negligent act in the process of the
product’s manufacturing that caused the harm occurred
in another country. The court thus ruled that ACE had a
duty to defend RC2 against class action lawsuits brought
against it for products sold and used exclusively in
the United States but manufactured in China. Because
we hold that, under Illinois law, the insurance policies
unambiguously excluded coverage for the alleged
harm caused by exposure to defective products that
occurred in the United States, regardless of where ante-
cedent negligent acts took place, we reverse.
I.
RC2 designs, produces, and markets the popular
“Thomas & Friends” toys based on the children’s public
television program of the same name (which is, in turn,
based on the The Railway Series of books by British
author Rev. W.V. Awdry).1 In June and September 2007,
RC2 recalled certain of its wooden railway trains and
train set components that had been manufactured in
China between 2005 and 2007 because they contained
lead. This recall led to numerous class action lawsuits
against RC2, alleging that the recalled toys were negli-
1
See Thomas & F r i e n d s H i s t o r y , h t t p :/ / w w w .
thomasandfriends.com/musa/Thomas.mvc/ About/History (last
visited Apr. 1, 2010).
No. 09-3032 3
gently manufactured and tested. At this stage, neither
party disputes that the underlying lawsuits relevant to
this appeal are based on products sold and used exclu-
sively in the United States.
RC2 turned to its insurers for defense and indemnifica-
tion. At the time of the alleged harm, RC2 maintained
two separate lines of commercial general liability (CGL)
insurance. The first covered only occurrences within
the United States. The second set of policies, issued by
ACE, applied internationally but excluded occurrences
that took place within the United States. RC2 first
tendered its claims to its domestic insurer. Unfortu-
nately for RC2, the domestic policies expressly excluded
damages resulting from lead paint; this oversight
erased what would have been the obvious source of
coverage for injuries occurring in the United States. Citing
the exclusion, the domestic insurer denied coverage. That
left the ACE international policy, which excluded occur-
rences within the United States, as RC2’s only oppor-
tunity for obtaining coverage.
ACE also denied coverage, claiming that the interna-
tional policies excluded the damages in question because
the occurrences took place within the United States. ACE
simultaneously filed the present action seeking a declara-
tion that it had no duty to defend or indemnify RC2.
RC2 counterclaimed seeking declaratory relief and dam-
ages reflecting its defense and indemnity costs in the
underlying lawsuits.
The insurance policies at issue, which were identical
in all relevant respects, provided that ACE would pay
4 No. 09-3032
those sums that the insured becomes legally obligated
to pay as damages because of “bodily injury” or
“property damage” to which this insurance applies. . . .
The insurance applies only to “bodily injury” and
“property damage” which occurs during the Policy
Period. The “bodily injury” or “property damage”
must be caused by an occurrence. The “occurrence”
must take place in the “coverage territory.” We will
have a right and duty to defend any “suit” seeking
those damages.
The policies defined “occurrence” as “an accident, in-
cluding continuous or repeated exposure to substan-
tially the same general harmful conditions.” “Coverage
Territory” included anywhere in the world but ex-
cluded “the United States of America (including its
territories and possessions).”
The parties filed cross-motions for summary judg-
ment. The district court ruled that because the negligent
manufacture of the products had taken place in China,
which was within the coverage territory, the policies
potentially covered the damages and ACE therefore had
a duty to defend the claims against RC2. The court
granted RC2’s motion with respect to the duty to
defend claims and awarded RC2 defense costs of
$1,620,114.77 plus interest. The parties settled the indem-
nity claims and the district court dismissed them with
No. 09-3032 5
prejudice.2 Thus, the only question that remains is
whether ACE is obligated to pay the defense costs. ACE
appeals the denial of its motion for summary judgment
and the grant of summary judgment to RC2 on the duty
to defend claim.
II.
We review a district court’s grant of summary judg-
ment, as well as its construction of the CGL policy, de
novo. Health Care Indus. Liab. Ins. Program v. Momence
Meadows Nursing Ctr., Inc., 566 F.3d 689, 692 (7th Cir. 2009).
The parties agree that Illinois law applies to the key
legal question presented in this diversity case: whether
ACE has a duty to defend RC2 under the terms of the
insurance policies. An insurer’s duty to defend its
insured is much broader than its duty to indemnify: to
determine whether an insurer has such a duty, a court
must “look to the allegations contained in the under-
lying complaint against the insured and compare those
allegations to the relevant coverage provisions of the
insurance policy” and if the facts alleged even potentially
fall within the policy’s coverage, the insurer has a duty
to defend. Guillen ex rel. Guillen v. Potomac Ins. Co. of Ill.,
785 N.E.2d 1, 7 (Ill. 2003); Crum & Forster Managers Corp.
v. Resolution Trust Corp., 620 N.E.2d 1073, 1079 (Ill. 1993);
2
The record does not reveal the terms of the settlement
agreement, but the stipulation of dismissal for the other claims
provided that the settlement would have no effect on the
duty to defend claims.
6 No. 09-3032
Outbound Marine Corp. v. Liberty Mutual Ins. Co., 607 N.E.2d
1204, 1220 (Ill. 1992). Ambiguous terms are construed
against the drafter but, in construing a policy, “governing
legal authority must, of course, be taken into account
as well, for a policy term may be considered unambiguous
where it has acquired an established legal meaning.”
Nicor, Inc. v. Associated Electric & Gas Ins. Serv. Ltd., 860
N.E.2d 280, 286 (Ill. 2006).
It is undisputed that the underlying lawsuits involve
damages allegedly caused by exposure to lead paint
that occurred within the United States, which under the
contract is entirely excluded from the coverage area. It
is also undisputed that the manufacture of the products
occurred within the coverage area. Therefore, the resolu-
tion of this case turns on whether, under the policies,
an “occurrence” takes place at the time and at the loca-
tion where any antecedent negligent acts took place. In
this case the allegedly negligent manufacture and
testing of the defective products took place in China. ACE
argues that Illinois law establishes that the occurrence
took place in the United States, where purchasers of the
toys and other products were exposed to the lead paint.
RC2 argues, to the contrary, that governing Illinois law
compels the conclusion that an “occurrence” takes place
in China, where at least some of the negligent acts that
“caused” the harm took place. The district court observed
that there was no Illinois precedent directly on point
for this issue. It distinguished the lines of authority pre-
sented by both parties and applied its own interpreta-
tion of the policies.
No. 09-3032 7
Under Illinois law, the interpretation of an insurance
contract is a matter of law. Nicor, 860 N.E.2d at 285; accord
BASF AG v. Great Forge Am. Assurance Co., 522 F.3d 813,
818-19 (7th Cir. 2008). We begin by examining the
language of the insurance policies itself, giving the words
their plain and ordinary meaning, and if there is no
ambiguity there is no need to look elsewhere. Nicor, 860
N.E.2d at 286. Although the term “occurrence” is itself
potentially ambiguous, it is defined within the insur-
ance policies as “an accident, including continuous or
repeated exposure to substantially the same general
harmful conditions.” On its face, this language suggests
that ACE’s interpretation of the policies is correct, at
least in the context of continuous or repeated exposure
to toxic products, because accident refers to the ex-
posure itself. On the other hand, the term “accident” is
susceptible to multiple interpretations and might be
considered ambiguous. But although every insurance
policy must be interpreted according to its own terms
to give effect to the intentions of the parties, id., many
insurance policies—including these—use standard lan-
guage that has been developed against the backdrop
of continual interpretation and reinterpretation of par-
ticular terms by the courts. Thus, as we have noted, an
otherwise ambiguous term may be rendered unambig-
uous when it acquires an established legal meaning. Id.
In support of its position, ACE argues that Illinois has
given an established legal meaning to the term “accident.”
It cites to Great American Insurance Co. v. Tinley Park Recre-
ation Commission, 259 N.E.2d 867, 869 (Ill. App. Ct. 1970),
for the proposition that an “accident” does not occur
8 No. 09-3032
“until all the factors of which it is comprised combine
to produce the force which inflicts injury.” The policy in
question in Tinley Park was taken out by the town recre-
ation commission to cover the risks it was exposed to in
operating a carnival and fireworks display. Although
there were no problems with the display, the clean-up
crew overlooked some unexploded fireworks. The next
day, a ten-year-old boy discovered two of those fire-
works and took them home. A day later, he was injured
when one of them exploded. The commission tendered
its claims to its insurer, but the insurer rejected the
claim and sought a declaratory judgment because the
insurance policy stated that it “applies only to those
accidents which occur during the policy period,” and that
it had expired by its own terms at 12:01 a.m. the day of
the injury. Id. at 868.
The insured argued that the insurer was required to pay
for the damages related to the boy’s injuries, even though
the explosion and injury took place after the policy had
expired. Because the negligent conduct that caused the
injury—the clean-up crew’s failure to remove the unex-
ploded fireworks—had occurred during the policy peri-
od, the insured insisted the policy covered the conduct.
The policy stated that the insurer was required to pay
damages arising “because of bodily injury . . . caused by
accident.” The insured reasoned that because a cause
and effect relationship existed between the accident and
the injury, coverage existed whenever the negligent acts
that were the proximate cause of the injury took place
within the policy period. Under this theory, the insur-
ance policy would have covered the injuries caused
No. 09-3032 9
during the coverage period even if the injuries had not
occurred until months or years later. The Tinley Park court
rejected the equation of the terms “negligent act” and
“accident” and held instead that an accident does not
occur until “all the factors of which it is comprised com-
bine to produce the force which inflicts injury.” Id. The
court found it clear that regardless of when the earlier
negligent acts occurred, under its construction of the
term “accident,” the accident did not occur until the
time of the explosion that injured the boy, on the after-
noon after the policy expired. Id. at 868-69.
The same rule has been applied by the Illinois Supreme
Court in the premises liability context. In some respects
this is a close analogue here, given the territorial coverage
limitation on the policies. In Cobbins v. General Accident
Fire & Life Ins. Corp., 290 N.E.2d 873, 879 (Ill. 1972),
the insured merchant sold fireworks (sparklers) to an
underage boy who incurred serious injuries while
playing with them at his home. In the lawsuit for negli-
gence against the merchant for the sale to a minor, the
Illinois Supreme Court refused to treat the illegal sale at
the insured’s store as an “accident” for purposes of deter-
mining where the accident occurred when the minor
later injured himself at home. The policy language ex-
cluded coverage for accidents occurring “away from
premises owned, rented or controlled by the named
insured.” The court held that the policy unambiguously
excluded coverage for the accident, noting that a rea-
sonable interpretation of accident “’clearly implies a
misfortune with concomitant damage to a victim, and
not the negligence which eventually results in that misfor-
tune.’ ” Id. at 878 (quoting Century Mutual Ins. Co. v. S. Ariz.
10 No. 09-3032
Aviation, Inc., 446 P.2d 490, 492 (Ariz. 1968)) (emphasis
added). This is apparently the only word from the
Illinois Supreme Court on this issue. The case resolved
(with one of the seven justices dissenting) a split in the
line of Illinois cases.
The Illinois approach is also consistent with the
general approach that most courts have taken to deter-
mining the location of an occurrence. For example, in CACI
International, Inc. v. St. Paul Fire & Marine Insurance Co., 566
F.3d 150 (4th Cir. 2009), the insured sought defense from
its domestic insurer for damages allegedly caused by
torture and abuse at Abu Ghraib and other prisons in
Iraq. Id. at 152. The policy in question had a territorial
limitation to the United States, but the insured argued
that it had alleged negligent supervision of prison guards
and that some of that negligent supervision occurred
within the United States and was thus potentially covered
by the insurance policy. The Fourth Circuit rejected the
insured’s argument. The court interpreted the coverage-
triggering term “event”—defined identically as “occur-
rence” in this case—using a “place of injury” test to
determine the location of the event. Id. at 156-57. The
court noted that “the great weight of case law holds that
it is the location of the injury—not some precipitating
cause—that determines the location of the event for
purposes of insurance coverage.” Id. at 157; accord
Farmers Alliance Mut. Ins. Co. v. Salazar, 77 F.3d 1291, 1296
(10th Cir. 1996) (collecting cases).
In response, RC2 does not argue that the insurance
policies are ambiguous. Rather, RC2 claims that the
policies unambiguously support its position that an
No. 09-3032 11
“occurrence” in the product liability context takes place
wherever any antecedent negligent acts take place. RC2
correctly points out that Illinois courts have unambigu-
ously adopted the so-called “cause theory.” Nicor, 860
N.E.2d at 288 (“[T]he cause theory represents the law of
Illinois.”). This approach looks to the underlying cause
of the harms to determine whether a series of harms
constitutes a single or multiple occurrences for purposes
of calculating per-occurrence deductibles or coverage
limits. Id. In the mass product-defect context, the under-
lying cause is often the negligent manufacture or testing
of the products, as is alleged here. For example, in
U.S. Gypsum v. Admiral Ins. Co., 643 N.E.2d 1226, 1259 (Ill.
App. Ct. 1994), the Appellate Court of Illinois held that
under a “continuous or repeated exposure” clause
identical to the clause in the policies in this case, the
continued manufacture and sale of asbestos insulation
constituted a single occurrence for purposes of calculating
the insurance deductible. In Nicor, the Illinois Supreme
Court confirmed that “where the damages for which
coverage is sought resulted from the manufacture and
sale of defective products . . . , the loss will be found to
have emanated from a single cause and there will be
but one occurrence for purposes of applicable polices,”
860 N.E.2d at 294, but found that there were multiple
occurrences where multiple exposures to mercury were
the result of a series of separate negligent installations
of gas meters in individual homes, rather than a common
negligent manufacture or sale of the meters. In neither
Nicor nor U.S. Gypsum was the location of the occurrences
relevant or discussed by the court.
12 No. 09-3032
RC2 argues that because Illinois has adopted the cause
theory, and the relevant negligent cause took place in
China, the “occurrence” also took place in China. But the
cause theory is not relevant to this case: for our pur-
poses, it is unnecessary to determine whether all of the
lead paint exposure alleged in the underlying complaints
was the result of a single common cause, and thus a
single occurrence, or multiple causes and multiple occur-
rences, under the continuous or repeated exposure
clause. What is important is where the occurrence or
occurrences, however many there were, took place. The
line of cases that RC2 relies on does not address this
question: the cause theory applies only to the determina-
tion of the number of occurrences and neither Illinois
nor any other jurisdiction, to our knowledge, has
applied this test to determine where an occurrence took
place.
Thus, the policies are clear that the “occurrence” that
triggers coverage takes place where the actual event that
inflicts the harm takes place. And based on the undis-
puted facts in this case, the “occurrence” here happened at
the location (or locations) of the exposure itself: within
the United States.
Because we hold that the insurance policies unambigu-
ously exclude coverage of exposure to defective products
that takes place in the United States, we need not rely on
extrinsic factors to determine the intent of the parties
in entering the agreements. But we note that the con-
struction urged by RC2 would render the domestic and
international policies in this case almost entirely redun-
No. 09-3032 13
dant. And because these policies use standard language,
this construction would make territorial limitations in
insurance policies largely irrelevant in product liability
situations. Most product liability claims will at least
potentially be caused by negligent acts that allegedly
occur both domestically and abroad; an insurance com-
pany’s duty to defend would thus almost invariably be
triggered in any products liability case, regardless of
where the injury happened. The only reason that lead-
paint exposure was not covered by the domestic policies
was an express exclusion in those policies. Indeed, RC2’s
own conduct in first submitting its claims arising from
lead-paint exposure within the United States to its domes-
tic insurer was entirely consistent with our holding.
Moreover, it would have made little sense for RC2 to
take out both international and domestic policies if its
primary risk for liability would be covered under both
policies. And, as the Fourth Circuit noted in CACI, “[t]he
reasons for a ‘place of the injury’ test are clear”: the
alternative “would let plaintiffs sweep any number of
worldwide events into the ambit of a domestic policy as
long as the underlying complaint alleged negligent super-
vision.” 566 F.3d at 157. A similar rationale applies here:
adopting RC2’s interpretation would allow it to sweep
any domestic event into its international policies so long
as it posited some antecedent negligent act that occurred
someplace outside the United States. Illinois law, wisely,
does not compel such a result.
In sum, under Illinois law and unless a particular policy
contemplates a different definition, an accident occurs
when and where all the factors come together at once to
14 No. 09-3032
produce the force that inflicts injury and not where
some antecedent negligent act takes place. Thus, under
the policies in question here, the accident that constitutes
the policy-triggering occurrence takes place at the loca-
tion of the exposure to lead paint, not at the location
where the products were manufactured and painted.
Because the parties agree that all the alleged exposure
to the products took place within the United States, these
occurrences took place in the excluded coverage area of
the ACE international policies.
III.
Thus, for the reasons discussed above, the policy-trig-
gering “occurrences” took place in the United States,
outside the coverage territory, and thus do not even
potentially fall within the policies’ coverage. ACE does not
have any duty to defend RC2 in the underlying suits.
Accordingly, the decision of the district court is R EVERSED
and the case is R EMANDED with instructions to enter
judgment in favor of the appellants.
4-5-10