2020 IL App (1st) 191648
No. 1-19-1648
Opinion filed September 14, 2020
First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
GENERAL CASUALTY COMPANY OF WISCONSIN, ) Appeal from the
a Wisconsin Insurance Corporation, and GENERAL ) Circuit Court of
CASUALTY INSURANCE COMPANY, a Wisconsin ) Cook County.
Insurance Corporation,
)
Plaintiffs and Counterdefendants-Appellees, ) No. 16 CH 5263
)
v. ) Honorable
) Neil A. Cohen,
BURKE ENGINEERING CORPORATION et al. * ) Judge, presiding.
)
Defendants
)
)
(Ronald Arlen et al., Defendants and Counterplaintiffs-
)
Appellants).
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Griffin concurred in the judgment and opinion.
Justice Walker dissented, with opinion.
OPINION
¶1 Defendant Burke Engineering Corporation (Burke) was sued for assisting the Village of
Crestwood (Village or Crestwood) conceal the release of contaminated well water to its residents.
Burke tendered defense of the lawsuits to its two insurers, General Casualty Company of
*
See the appendix to this opinion for a list of all defendants and counterplaintiffs.
No. 1-19-1648
Wisconsin (General Casualty) and Essex Insurance Company. After the cases settled for $18.3
million, General Casualty denied coverage and sued for a declaration that it had no duty to defend
or indemnify Burke for its intentional conduct. The residents filed a counterclaim alleging, in part,
that General Casualty breached its contract by denying coverage and acted in bad faith under
section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2016)). They also filed an
affirmative defense asserting estoppel based on General Casualty’s failure to defend under a
reservation of rights or file a timely declaratory action.
¶2 The trial court granted General Casualty’s motion for summary judgment on its complaint
and on the counterclaim, finding that the plaintiff-residents failed to allege facts showing Burke’s
conduct was accidental or unintentional. The plaintiff-residents contend the trial court erred
because (i) their complaints raised the possibility of coverage, which triggers the duty to defend,
(ii) General Casualty was not an excess insurer because its policies conflicted with the Essex
policy, (iii) General Casualty acted unreasonably in refusing to defend, and (iv) General Casualty
acted in bad faith under section 155 of the Insurance Code.
¶3 We affirm. The plaintiff-residents’ complaints failed to allege facts that trigger coverage
and the duty to defend. General Casualty was not required to indemnify Burke for the settlement
agreement and did not act in bad faith in denying coverage. Because General Casualty had no duty
to defend Burke, we need not address whether it operated as an excess insurer.
¶4 After more than a decade of litigation, we realize that this is a disappointing result for the
residents of Crestwood. In applying insurance law, though, the amount of harm is not, and should
never be, taken into consideration. Otherwise, the law becomes unpredictable, totally arbitrary,
and dependent on the whim of the individual judge, all of which is repugnant to the rule of law.
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¶5 BACKGROUND
¶6 The Village supplies its residents with Lake Michigan water purchased from a neighboring
town and water from privately owned wells. In 1985, the Illinois Environmental Protection Agency
(IEPA) informed Crestwood’s mayor and other Village officials that one well (Well Number 1)
was contaminated with toxic chemicals, including known carcinogens, making its water unsafe for
human consumption.
¶7 Between 1980 and 2006, Burke provided water engineering and consultation services to
the Village, performing audits of its water supply and helping the Village prepare water usage
reports for government agencies. With Burke’s advice and assistance, Village officials reported to
the IEPA that the Village supplied its water from Lake Michigan and placed its well water on
“emergency backup” status. This was not true. While telling its residents that water came
exclusively from Lake Michigan and was safe to drink, the Village actually used Well Number 1
as a source and avoided testing it for chemical pollutants.
¶8 In November 2007, the IEPA discovered the Village regularly used contaminated Well
Number 1, pumping millions of gallons of tainted drinking water to residents. In August 2008, the
Village mayor admitted to the IEPA that the Village had been supplementing Lake Michigan water
with water from Well Number 1. In April 2009, the Chicago Tribune reported on the Village’s use
of the contaminated well. Later that year, residents began suing the Village, its past and current
mayor, and other Village officials. The suits sought damages for personal injuries allegedly caused
by the contaminated water, including multiple forms of cancer and death. Eventually, the suits
were consolidated.
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¶9 Initially, Burke was not named as a defendant. The plaintiff-residents discovered Burke’s
involvement during discovery. Documents showed Burke knew the Village had been using
contaminated Well Number 1 and yet prepared reports for the Village concealing that use from the
IEPA and the public. The criminal trial of the Village’s former water department supervisor
revealed additional facts on Burke’s involvement. Evidence from that trial showed that yearly
Burke prepared private documents for Village officials detailing the pumping of millions of gallons
from Well Number 1 while simultaneously preparing false audit reports for state regulators
concealing the well’s use.
¶ 10 Once the plaintiff-residents learned of Burke’s participation, they added Burke as a
defendant. The initial pleadings against Burke in the fourth amended complaint included claims
for negligence, violations of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS
505/1 et seq. (West 2016)), common law fraud, and civil conspiracy to commit fraud. (A fifth
amended complaint was filed a short time later, which included the same allegations against
Burke.) In the negligence count, the plaintiff-residents alleged that Burke “by and through its
agents breached their fiduciary duty by failing to disclose the harmful chemicals in the water to
the public.” In the same count, the plaintiff-residents alleged Burke “intentionally concealed the
fact that it was using well water contaminated with hazardous chemicals to supply tap water ***
to avoid the cost of making water safe.”
¶ 11 The trial court granted Burke’s motion to dismiss all claims with prejudice except the civil
conspiracy to commit fraud count, which the court dismissed without prejudice. In dismissing the
negligence count, the trial court said, “[n]ot only have Plaintiffs failed to make any allegations in
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their complaint that Defendant had a duty pursuant to the Illinois Administrative Code, but this
court cannot imagine a scenario in which Plaintiffs could properly plead such a duty.”
¶ 12 The sixth amended complaint realleged against Burke facts in support of their claim for
civil conspiracy to commit fraud. Specifically, that complaint alleged Burke advised the Village
how to conceal their use of Well Number 1 for the illegal purposes of avoiding detection by
authorities and avoiding mandated testing and reporting. It also alleged Burke’s involvement in
civil conspiracy with the Village and Village officials by agreeing to deceive the plaintiff-residents
and their decedents on the use and presence of contaminated well water.
¶ 13 Tender of the Underlying Complaint
¶ 14 Burke tendered the underlying suits to Essex under a claims-made professional liability
policy in effect when the first suit against Burke was filed. That policy provided coverage in the
amount of $1 million, which included defense costs. Essex agreed to defend Burke.
¶ 15 Burke also tendered the underlying suits to General Casualty under general liability
policies issued between December 1, 1997, to December 1, 2010. The relevant policy provisions
are the same in every policy and provide:
“a. We will pay those sums that the insured becomes legally obligated to pay as
damages because of ‘bodily injury’ *** to which this insurance applies.
***
b. This insurance applies:
To ‘bodily injury’ *** only if:
(a) The ‘bodily injury’ *** is caused by an ‘occurrence’ ***
(b) The ‘bodily injury’ *** occurs during the policy period.”
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¶ 16 The General Casualty primary liability policies define “occurrence” as “an accident,
including continuous or repeated exposure to substantially the same general harmful conditions.”
¶ 17 The General Casualty primary liability policies also contain an exclusion for injury or
damage that was expected or intended:
“This insurance does not apply to:
a. Expected or Intended Injury
‘Bodily injury’ or ‘property damage’ expected or intended from the
standpoint of the insured.”
¶ 18 In addition, General Casualty issued umbrella liability policies to Burke effective from
December 1, 1997 to December 1, 2010, which similarly covered excesses of the underlying
primary insurance for any “bodily injury” caused by an “occurrence,” defined as “an accident,
including continuous or repeated exposure to substantially the same general harmful conditions.”
The umbrella policy excluded coverage for “expected or intended” injuries from the standpoint of
the insured.
¶ 19 Burke gave General Casualty notice of the fourth amended complaint in June 2013.
General Casualty acknowledged the claim and reserved its rights, advising Burke it would be
undertaking an investigation of potential coverage under the policies.
¶ 20 On March 28, 2014, counsel for General Casualty sent a letter to Burke asserting that under
the policies, coverage would be excess to that provided by Essex. The letter set forth several
grounds for lack of coverage including (i) the complaint did not allege bodily injury or property
damage caused by an “occurrence” and (ii) the policies excluded coverage for expected or intended
injuries, as alleged in the complaint. Specifically, the letter stated that “[t]he complaint repeatedly
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alleges that the release of contaminated water from the Well caused injuries, and that the release
happened purposefully and with the defendants’ knowledge of the probably harmful
consequences” and thus “[t]here is no allegation of any accident.” The letter said the complaint
“repeatedly alleges that the Plaintiffs were injured by the release of contaminated water from the
Well that, as is variously alleged, the Defendants and Burke accomplished, permitted, suggested
or concealed with knowledge of the probable harmful consequences.”
¶ 21 After the fifth amended complaint, General Casualty again denied coverage, writing Burke
that the complaint does “not allege bodily injury or property damage caused by an accident” but
instead repeatedly alleges the plaintiffs “were injured by the release of contaminated water from
the Well that, as is variously alleged the Defendants and Burke accomplished, permitted, suggested
or concealed with knowledge of the probable harmful consequences.”
¶ 22 Settlement
¶ 23 Burke and the plaintiff-residents began settlement talks with a private mediator in October
2014. A General Casualty representative was initially present but later decided not to participate.
The initial mediation was unsuccessful, but the parties agreed to continue negotiations. Before the
next mediation session, General Casualty informed Burke it intended to file a declaratory judgment
action. Thereafter, mediation resulted in a settlement agreement against Burke for $18.3 million.
Essex paid its remaining policy limits of $298,422.56, leaving an outstanding settlement amount
of $18,001,577. Under the settlement agreement, redress rested exclusively on an assignment of
Burke’s rights in the General Casualty insurance policies.
¶ 24 Declaratory Judgment Complaint
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¶ 25 General Casualty filed a complaint for declaratory judgment, arguing it had no duty to
defend Burke in the underlying suits because the claims arose outside the provisions of Burke’s
insurance policies and exclusions barred coverage.
¶ 26 The plaintiff-residents filed a counterclaim, alleging breach of contract (count I), waiver
and estoppel (count II), and bad faith under section 155 of the Insurance Code (215 ILCS 5/155
(West 2016)) (count III). (Count II, which alleged General Casualty waived its right to assert
defenses to coverage and was estopped from raising them, was dismissed.) They also filed an
affirmative defense asserting estoppel based on General Casualty’s failure to defend under a
reservation of rights or file a timely declaratory action.
¶ 27 General Casualty moved for summary judgment, arguing it had no duty to defend Burke
because the factual allegations of the underlying complaints did not fall within or potentially within
the coverage of the policies. Specifically, General Casualty contended regardless of the label
placed on the allegations, they all involved allegedly intentional conduct by Burke, which did not
constitute an “occurrence” under the policies. General Casualty also argued that estoppel does not
apply to create coverage when there is no duty to defend and that it cannot be found to have acted
in bad faith under section 155 of the Insurance Code without coverage or a duty to defend.
¶ 28 The trial court granted summary judgment for General Casualty. The court found that the
factual allegations failed to allege an “occurrence,” namely, an accident, under the policies. Indeed,
plaintiff-residents alleged intentional conduct, namely, that Burke knew the Village used water
from the contaminated well and had intentionally advised the Village to hide that fact from the
IEPA and the residents. The court stated, “[t]hese factual allegations do not allege ‘an unforeseen
occurrence’ or ‘sudden or unexpected event.’ Rather, the factual allegations set forth only
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intentional conduct by Burke.” The “negligence” counts were irrelevant because the “court looks
at the actual factual allegations, not the label.” And, in the absence of “a single factual allegation”
supporting the existence of an “occurrence” as defined by the policies, there was no potential
coverage and no duty to defend. The trial court also found the allegations came within the policies’
exclusions for intentional conduct. Finally, the court granted summary judgment to General
Casualty on the counterclaims and affirmative defenses on the basis that it had no duty to defend,
did not breach its contract or act in bad faith, and could not be estopped from denying coverage.
¶ 29 ANALYSIS
¶ 30 Standard of Review
¶ 31 Summary judgment will be denied “where there is a dispute as to material facts, or where,
the material facts being undisputed, reasonable persons might draw different inferences from the
facts” and the moving party is entitled to judgment as a matter of law. (Internal quotation marks
omitted.) Wolfram Partnership, Ltd. v. LaSalle National Bank, 328 Ill. App. 3d 207, 215 (2001).
The movant for summary judgment has the initial burden of proof. Direct Auto Insurance Co. v.
Beltran, 2013 IL App (1st) 121128, ¶ 43. We review a disposition of summary judgment de novo.
Id.
¶ 32 Duty to Defend
¶ 33 In determining an insurer’s duty to defend an insured in an underlying suit, we compare
the allegations in the underlying suit with the relevant policy language. Pekin Insurance Co. v.
Centex Homes, 2017 IL App (1st) 153601, ¶ 34. We liberally construe the underlying complaint
and policy in the insured’s favor. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co.,
144 Ill. 2d 64, 74 (1991). The threshold to trigger the duty to defend is low. State Farm Fire &
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Casualty Co. v. Tillerson, 334 Ill. App. 3d 404, 408 (2002). An insurer must defend an action
“unless it is clear from the face of the underlying complaint that the allegations fail to state facts
which bring the case within, or potentially within, the policy’s coverage.” (Emphasis omitted.)
Wilkin, 144 Ill. 2d at 73.
¶ 34 The plaintiff-residents argue that their allegations potentially fall within the insurance
policy, thus triggering coverage. They reason that General Casualty’s duty to defend was triggered
by alleging that Burke was negligent in breaching its fiduciary duty to inform the public about the
contaminated water. Even though those allegations were later dismissed with prejudice, recovery
was still possible, they assert, because they filed amended complaints preserving the negligence
counts for appeal and intended to amend their complaints to allege negligence based on statutory
violations. They frame the critical question as whether the allegations give rise “to the possibility
of recovery,” with the exact “probability of recovery” being irrelevant. Western Casualty & Surety
Co. v. Adams County, 179 Ill. App. 3d 752, 756 (1989).
¶ 35 The plaintiff-residents rely on Outboard Marine Corp. v. Liberty Mutual Insurance Co.,
154 Ill. 2d 90 (1992), to argue they met the minimal pleading requirements to trigger the duty to
defend. In Outboard Marine, the insured sought defense and indemnification from its
comprehensive general liability insurers after the government sued it for allegedly releasing toxic
chemicals into a nearby harbor and Lake Michigan over a number of years. Id. at 98. The policies
had a “pollution exclusion,” which barred coverage for the release of environmentally toxic
materials except when “sudden and accidental.” (Emphasis omitted.) Id. at 118. The policy did not
define “sudden” but defined “accident” to include “continuous or repeated exposure to conditions,
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which results in *** property damage neither expected nor intended from the standpoint of the
insured.” (Emphasis and internal quotation marks omitted.) Id. at 123.
¶ 36 The insurer moved for summary judgment, arguing it had no duty to defend or indemnify
under the “pollution exclusion” provision. Id. at 99. The trial court agreed. Id. at 100. In affirming,
the appellate court construed “sudden” to mean abrupt and the release of toxic chemicals over
several years precluded “abrupt.” Id. at 119-20.
¶ 37 The supreme court reversed, finding “sudden” as ambiguous and, construing it in favor of
the insured, to mean “unexpected” or “unintended.” Id. at 121. Thus, “the sudden and accidental
exception to the policies’ pollution exclusion provision applies to unexpected and unintended
releases of pollutants, recreating coverage for such releases.” Id. at 126. Because the underlying
complaints merely alleged that the insured discharged toxic chemicals into the harbor for several
years and did not allege the insured intended to do so, the underlying complaints alleged facts
potentially within coverage. Id.
¶ 38 The plaintiff-residents contend their complaints allege Burke negligently failed to inform
Village residents of the contaminated water so a possibility exists, as in Outboard Marine, that the
injuries were unexpected, triggering the duty to defend. We disagree. First, in Outboard Marine,
the issue was whether a policy exclusion applied, not whether the complaint’s allegations against
the insured fell within policy coverage. More significantly, in Outboard Marine, the underlying
complaint never alleged intentional conduct by the insured. The plaintiffs merely alleged Outboard
Marine discharged toxic chemicals into the harbor and argued that the pollution exclusion did not
bar coverage. Conversely, the complaints here allege Burke knew the well water to be
contaminated and intentionally advised the Village to hide that fact. The underlying complaints
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further allege Burke intentionally concealed the facts from the plaintiff-residents and intentionally
misrepresented that the water’s safety. These factual allegations do not allege “an unforeseen
occurrence” or “sudden or unexpected event.”
¶ 39 That the underlying complaints also contained “negligence” counts is irrelevant. A court
looks at the actual factual allegations, not the label. See, e.g., Westfield National Insurance Co. v.
Continental Community Bank & Trust Co., 346 Ill. App. 3d 113, 123 (2003) (“[w]e are not
persuaded by the minors’ attempt to recast as negligence the expected or intended acts of an insured
in an attempt to defeat the intended-acts exclusion” of the policies); State Farm Fire & Casualty
Co. v. Watters, 268 Ill. App. 3d 501, 510 (1994) (underlying complaint’s allegations of negligent
infliction of emotional distress are transparent attempt to trigger insurance coverage when
insured’s conduct was plainly intentional). And the factual allegations that Burke failed to disclose
the contamination and conspired with the Village to hide that fact set forth only intentional
conduct. Atlantic Mutual Insurance Co. v. American Academy of Orthopaedic Surgeons, 315 Ill.
App. 3d 552, 563-65 (2000) (allegations that underlying defendants “failed to disclose” pertinent
information to injured parties alleged intentional, not negligent, conduct because potential for
coverage determined by facts alleged, not semantics of underlying suit).
¶ 40 In the negligence count, the plaintiff-residents “repeat, adopt, and reallege” all of the
factual allegations made to that point. And those allegations state intentional conduct, which
undermines the dissent’s premise that a court could find Burke acted negligently in failing to
disclose the harmful chemicals to the public. Of particular note, the plaintiff-residents alleged
Burke sent a letter informing Crestwood that its “water system suffered from substantial leaks”
and “of the large cost associated with repairing such leaks and recommended that a possible course
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of action *** would be to conceal the presence of these leaks from the EPA and other regulatory.”
Moreover, the negligence count itself reiterates that Burke “intentionally concealed the fact that it
was using well water contaminated with hazardous chemicals to supply tap water to the Plaintiffs.”
The underlying complaints do not contain any factual allegations supporting the existence of an
“occurrence” as defined by the policies.
¶ 41 Facts Outside of the Complaint
¶ 42 The plaintiff-residents contend that had the trial court looked beyond the four corners of
the complaint, it would conclude General Casualty had a duty to defend. Although courts generally
compare the allegations in the underlying suit with the relevant policy language in determining an
insurer’s duty to defend an insured (Pekin Insurance Co., 2017 IL App (1st) 153601, ¶ 34), a line
of cases holds that if the insurer “has knowledge of true but unpleaded facts” showing the claim
“potentially within the policy’s coverage” that suffices to trigger the duty to defend. Associated
Indemnity Co. v. Insurance Co. of North America, 68 Ill. App. 3d 807, 816 (1979). The plaintiff-
residents assert that, in correspondence with Burke, General Casualty acknowledged the possibility
of coverage, which alone should trigger coverage. Further, they contend General Casualty knew
they intended to amend their complaint to add a statutory negligence claim and to pursue their
common law negligence claim on appeal, which also created the potential for coverage and the
duty to defend.
¶ 43 General Casualty’s Correspondence
¶ 44 According to the plaintiff-residents, General Casualty admitted in correspondence that it
might have a duty to defend, which precludes summary judgment. They say that General
Casualty’s March 28, 2014, letter to Burke’s attorney acknowledges a “potential” that one of the
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policies covered Burke and, if so, the policy “potentially” provides coverage. For support, they
rely on American Standard Insurance Co. of Wisconsin v. Gnojewski, 319 Ill. App. 3d 970 (2001).
¶ 45 The insurer in American Standard, Gallant Insurance Company (Gallant), insured
automobiles owned by Gnojewski. Id. at 971. After Gnojewski defaulted on her premium
payments, Gallant notified her that the policy would be cancelled effective June 10, 1995. Id. at
972. On August 1, 1995, Gnojewski and another motorist died in an auto accident. The other
motorist’s estate sued Gnojewski’s estate for negligence. Id. at 972. Gnojewski’s estate argued
Gallant could not deny coverage because Gallant had failed to send a cancellation notice to the
lender who had a perfected security interest in the automobile, as required by Illinois law. Id. at
974-75. Gallant was unaware of the lender’s lien. The court had to decide whether the Insurance
Code provision requiring the insurer to send a cancellation notice to affected lienholders, “if
known,” includes a lienholder of which it had constructive notice. Id. at 974-75. The court
concluded that at least the potential for coverage existed because the cancellation notice may not
have been effective. Id. at 977 (“The key to this case is that [the interpretation of ‘if known’] is a
disputed question.”). This potential for coverage, though minimal, triggered Gallant’s duty to
defend Gnojewski under the reservation of rights or file a declaratory judgment action. Id. Gallant
did neither, which violated its duty to defend and barred it from raising policy defenses to coverage.
Id. at 978.
¶ 46 The plaintiff-residents argue that in American Standard communications from the insurer
showed the duty to defend. Intraoffice memos between Gallant’s employees indicated discussions
on whether coverage existed. But the American Standard court did not rely on the insurer’s
intraoffice correspondence in finding the duty to defend. Instead, the court held Gallant’s
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obligation to either defend under a reservation of rights or file a declaratory judgment action
triggered by the uncertainty as to whether Gallant had to notify the lienholder of the cancellation.
¶ 47 More significantly, while the correspondence includes phrases like “potential for
coverage,” when read in its entirety, that does not create a duty to defend. The letters never admit
a duty to defend, nor state that the allegations of the underlying complaints potentially come within
the insuring agreement of the policies. Rather, the letters inform Burke that General Casualty had
no duty to defend and specifically state the claims do not allege an “occurrence” in the scope of
the expected or intended injury exclusion. The March 28 letter states, “[t]he complaint also can be
repeatedly interpreted to allege expected or intended injury, which the policies exclude, and injury
that was not caused by an occurrence, which the policies do not cover.” And a later letter from
General Casualty explicitly notes, “[t]he complaints do not allege bodily injury or property damage
caused by an accident.” The correspondence neither indicate an admission of coverage nor provide
a basis for reversing the trial court.
¶ 48 Other Facts Outside of the Complaint
¶ 49 The plaintiff-residents also assert General Casualty knew their complaint would be
amended to raise a statutory negligence claim against Burke and that they planned to appeal the
dismissal of their common law negligence claims, both of which could raise coverage. They argue
the trial court improperly ignored the insurer’s knowledge that the complaint against its insured
would be amended to include claims that could be covered. This, they contend, triggers the duty
to defend. They cite no Illinois cases in support of this argument, only a Pennsylvania appellate
court ruling in Heffernan & Co. v. Hartford Insurance Co. of America, 614 A.2d 295, 298 (Pa.
Super. Ct. 1992), which is distinguishable.
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¶ 50 In Heffernan, the complaint against the insured did not allege facts that would trigger the
insurer’s duty to defend. Id. at 298. During discovery, the plaintiffs learned of a claim against the
insured that would undoubtedly be covered. Id. This sufficed to put the insurer “on notice” that a
claim triggering its duty to defend would be filed. Id. Even though the complaint had not yet been
amended to include these allegations, that the complaint could be amended before final judgment
triggered the duty to defend. Id.
¶ 51 Trying to squeeze within the facts of Heffernan, plaintiff-residents contend they planned
to amend their complaint to include statutory negligence claims and to continue to pursue their
common law negligence claims on appeal, so General Casualty knew Burke might be found liable
under a negligence theory and had a duty to defend. We disagree. Although the plaintiff-residents
intended to amend their complaint, nothing in the record supports their assertion that Burke’s
conduct was an accidental occurrence. Unlike in Heffernan, where the claims would be
indisputably covered once amended, the plaintiff-residents cannot allege facts to support a
negligence claim. In dismissing the negligence counts, the trial court stated, “[n]ot only have
Plaintiffs failed to make any allegations in their complaint that Defendant had a duty pursuant to
the Illinois Administrative Code, but this court cannot imagine a scenario in which Plaintiffs could
properly plead such a duty.” This does not lead to the conclusion that General Casualty knew it
might be liable to defend Burke.
¶ 52 Estoppel
¶ 53 The estoppel doctrine applies only where the insurer has breached the duty to defend and
fails to either file a timely declaratory judgment action or defend under a reservation of rights.
Bartkowiak v. Underwriters at Lloyd’s, London, 2015 IL App (1st) 133549, ¶ 47; Employers
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Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 151 (1999) (“Application of the
estoppel doctrine is not appropriate if the insurer had no duty to defend, or if the insurer’s duty to
defend was not properly triggered.”). “In other words, the estoppel doctrine cannot create coverage
where none existed in the first place.” Bartkowiak, 2015 IL App (1st) 133549, ¶ 48 (citing ISMIE
Mutual Insurance Co. v. Michaelis Jackson & Associates, LLC, 397 Ill. App. 3d 964, 974 (2009)).
¶ 54 The trial court correctly held the underlying complaints did not allege conduct by Burke
constituting an occurrence. So, estoppel cannot apply to create coverage.
¶ 55 Remaining Claims
¶ 56 Having ruled that General Casualty did not have a duty to defend, we need not address the
question of whether General Casualty operated as an excess insurer. We also need not address
whether General Casualty must indemnify Burke for acting unreasonably or in bad faith by
refusing to defend Burke. The duty to defend is broader than the duty to indemnify and there must
be a duty to defend for there to be a duty to indemnify. Id. ¶ 27 (“where an insurer has no duty to
defend, it necessarily has no duty to indemnify”). As a matter of law, General Casualty had no
duty to defend Burke in the underlying complaints, and it also had no duty to indemnify Burke for
the underlying settlement.
¶ 57 Affirmed.
¶ 58 JUSTICE WALKER, dissenting:
¶ 59 I respectfully dissent because General Casualty had a duty to defend its insured, Burke.
This case comes to us on appeal from a summary judgment entered in favor of the insurer, General
Casualty, on a complaint for a judgment declaring that it had no duty to defend or indemnify Burke
in the underlying lawsuit the citizens of Crestwood filed against the Village and Burke. The
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underlying lawsuit settled without trial. Because of the procedural posture of the case, no court has
determined the accuracy of any of the allegations of the underlying complaint.
¶ 60 This court needs to decide only whether the allegations of the underlying complaint impose
on General Casualty a duty to defend or indemnify its insured, Burke, in the underlying lawsuit.
Our supreme court stated the applicable standards in United States Fidelity & Guaranty Co. v.
Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991), where the court held that the insurer has a duty to
defend whenever the allegations of the complaint “do not preclude potential coverage under the
policy.’
¶ 61 General Casualty asserts that it has no duty defend or indemnify because the policy
excludes coverage for bodily injury and property damage “expected or intended from the
standpoint of the insured.” The majority correctly observes that the plaintiffs in the underlying
lawsuit repeatedly and forcefully allege facts that, if proven, would show that Burke expected and
intended injury to follow from its actions. Despite the majority’s observation, under Wilkin, the
question we face is not whether the complaint includes allegations of conduct the insurance does
not cover. Instead, we must determine whether the lawsuit precludes coverage. “The insurer may
refuse to defend only if the insurance contract cannot possibly cover the liability arising from the
facts alleged.” Illinois Emcasco Insurance Co. v. Northwestern National Casualty Co., 337 Ill.
App. 3d 356, 361 (2003). Could a court hold Burke liable even if the citizens of Crestwood failed
to prove that Burke expected or intended its actions to cause bodily injury or property damage? To
the question correctly stated, this court should answer: “yes, the court could hold Burke liable.”
¶ 62 The citizens alleged that Burke “breached [its] fiduciary duty by failing to disclose the
harmful chemicals in the water to the public.” Even if Burke acted only negligently, without
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expecting or intending its actions to injure anyone, a court could hold Burke liable for breaching
its fiduciary duty to disclose information concerning the water to the public. See Board of
Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 452-55 (1989). Thus, the complaint
does not preclude coverage, and General Casualty had a duty to defend Burke. I would reverse the
judgment entered in favor of General Casualty and remand for further proceedings in the circuit
court.
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¶ 63 APPENDIX
Defendants
BURKE ENGINEERING CORPORATION, an Illinois Corporation; CHARLENE
EARLEY, as Special Administrator of the Estate of Diana Defilippis, Deceased; VINCENT A.
ABETE, as Special Administrator of the Estate of Beverly Abete, Deceased; JEFFREY
ADCOCK, as Special Administrator of the Estate of Debra Adcock, Deceased; JENNIFER
ARLEN; MELISSA ARLEN; MICHAEL ARLEN; RONALD ARLEN; LYNN AVERY;
THOMAS J. BADAL; SYLVIA BAKER, as Special Administrator of the Estate of Elmer Baker,
Deceased; THERESA BARNES; DEBORAH BAUER; JANET BELAK; MICHAEL BELL
SR.; THEODORE BERCH; DIANE BERRY, Individually and as Special Administrator of the
Estate of Jeffrey Berry, Deceased; RAY BIALEK, Individually and as Special Administrator of
the Estate of Donna Bialek, Deceased; KRISTEN BIEN, as Special Administrator of the Estate
of James Bien, Deceased; JENNIFER BITTNER; LAURA BLAND, as Special Administrator of
the Estate of George Bland, Deceased; JEFFREY BLAND; DEBORAH BOETTCHER; MARY
BOLISENGA, as Special Administrator of the Estate of Joseph Bolisenga, Deceased;
CAROLYN BUONICONTI; HAROLD BRADY; KATHLEEN BRENNAN; FRANK
CALDARIO; DAVID CAMPBELL; KRISTINE TIGGELAAR, as Special Administrator of the
Estate of Donald Campbell, Deceased; JOSEPH CAMPBELL; ROBERT CAMPBELL;
SABINE CAMPBELL; RAYMOND CANTELO; RYAN CARTER, Individually and as Special
Administrator of the Estate of Douglas Johnson, Deceased; JOANNE CASEY; SUSAN L.
KHATTAB, as Special Administrator of the Estates of Betty S. Cheffer, Deceased, and Donald
H. Cheffer, Deceased; TANYA CHAINEY; ANGIE CHAPA; TONY CHAPA; KAREN
CHAPUT; DIANE CIEZADLO; FRANK CIEZADLO; KEVIN CLARK; ROBERT CLARK, as
Parent and Next Best Friend of Andrew Clark, a Minor; SHARON CONNOLLY; JOYCE
CONSDORF, as Special Administrator of the Estate of John Consdorf, Deceased; SHAWN
CONWAY; RENATA CORLEY; KIMBERLY A. CRUCE; TIMOTHY AND LAURA
DALEY, as Parents and Next Best Friends of Katherine Rose Daly, a Minor; ANGELA DEA;
JOHN DEL MURO; SOCORRO DEL MURO; KELLY DELUISE; VINCENT DELUISE;
DENNIS DEVRIES, as Special Administrator of the Estate of Gwendolyn Devries, Deceased;
ROBERT DIBENEDETTO; SUSAN DIGUIDO; TERRY DIGUIDO; MICHELLE DOWNEY;
GERALDINE POTTER, as Special Administrator of the Estates of Irene L. Doyle, Deceased,
and William J. Doyle, Deceased; ROBERT DUBIN, as Special Administrator of the Estate of
Kristin Dubin, Deceased; NORMA DUNCAN; ROBERT DUNLEAVY; MITCHELL
DURLAK, as Special Administrator of the Estate of Nancy Durlak, Deceased; DION DWYER;
MARIA EGAN; SUSAN EZERSKI, as Special Administrator of the Estate of Florence Rachuck,
Deceased; ALLYSON FALLS; ANTHONY AND MONICA FIORENZO, as Parents and Next
Best Friends of Nickolas Fiorenzo, a Minor; ED FITZGIBBONS; GERALDINE
FITZGIBBONS; DEBBIE FLANNIGAN; CONSTANCE FREDRICK; HARRY FREDIRCK;
MARYLOU FREEMAN; DANIEL FRIBERG; PATRICIA KRAUSE, as Special Administrator
of the Estate of Brooke Fry, Deceased; EVERETT GALUSHA, as Special Administrator of the
Estate of Mary Ann Galusha, Deceased; ADRIAN GARIBAY; JANET GERVASIO; STANLEY
GIERTUGA; DAVID GONZALEZ; PHILLIP GORECKI; KURT GREGORY; ANGELA
GRIGOLA; SUSAN GRIGOLA; DIANE GUSTAFSON, as Special Administrator of the Estate
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No. 1-19-1648
of Elmer Gustafson, Deceased; ALEXANDER J.L. GUYETTE; DUANE HANACEK SR., as
Special Administrator of the Estate of Duane Hanacek Jr., Deceased, and as Special
Representative of Bernice Hanacek; JOANNE HAASE; ROBERT HAASE; PAMELA
HARVEY; MIKE HAUSER, as Special Administrator of the Estate of Scott Hauser, Deceased;
PAUL HERNANDEZ; TAMMY LAWSON-HERNANDEZ; MICHAEL HOULIHAN;
BARBARA HULL; AUDREY ITHAL; GLENN ITHAL; JEFFREY ITHAL; NICOLE ITHAL;
CLAUDIA JACKOWIAK, Individually and as Special Administrator of the Estate of Richard
Jackowiak, Deceased; RUBY JANES; DAVID JEROSKI, Individually and as Special
Administrator of the Estates of Albert Jeroski, Deceased, and Mary Jeroski, Deceased;
CHRISTINE JIMENEZ; LINDA JODY, Individually and as Special Administrator of the Estates
of Robert Nielsen, Deceased, and Karen Nielsen, Deceased; MARGARET JOHNSON, PERRY
JORDAN, Individually and as Special Administrator of the Estate of Ingeborg Jordan, Deceased;
CHRISTIE JOSZA; EILEEN JOSZA, Individually and as Parent and Next Best Friend of Kaylin
Josza, a Minor; JENNIFER JOSZA; KAREN KACZYNSKI; RONALD KACZYNSKI; DEREK
KALCHBRENNER; ELLEN KAKOSKA; DAWN KINCAID, as Special Administrator of the
Estate of Fred Schneider, Deceased; BRENDA J. KILLEN; GARY KISSEL, as Special
Administrator of the Estates of Kenneth Kissel, Deceased, and Marilyn Kissel, Deceased; JUDY
KLESKER, as Special Administrator of the Estate of Gloria Klesker, Deceased; CHARLES
KNOX; RONALD KOOIMA; DELORES KOPROWSKI, as Special Administrator of the Estate
of Anthony Koprowski, Deceased; MATTHEW FRY; BRIANNE FRY; BRUCE KRYSTOF, as
Special Administrator of the Estate of Ed Krystof, Deceased; BRIAN KWASNY, as Special
Administrator of the Estate of DIANE KWASNY, Deceased; SUSANNE LANDING; ROSE
LAMANTIA, as Special Administrator of the Estates of Mary Lamantia, Deceased, and Maurice
Lamantia, Deceased; DEBBIE LARCHER; BRADLEY LARSON, Individually and as Special
Administrator of the Estate of B. Jean Larson, Deceased; KATHLEEN LEWANDOWSKI, as
Special Administrator of the Estate of Richard Lewandowski, Deceased; THOMAS LEAHY;
BONITA LOEFFEL; WILLIAM LOEFFEL, Individually and as Special Administrator of the
Estate of Sandra Loeffel, Deceased; CHRISTINE LOTZ, as Mother and Next Friend of Nicole
Munoz, a Minor; PAUL MUNOZ; BRIAN LUCITT; FREDRICK LUNA, as Special
Administrator of the Estate of Emma Luna, Deceased; KATHY LUDWIG-HERNANDEZ;
ELIZABETH ANN LYSICK; DOUGLAS MACLEAN, as Special Administrator of the Estates
of Barbara MacLean, Deceased, and Hany MacLean, Deceased; JACQUELINE MALDEN;
JACOB MAREK; DAVE MARSZALEK; VANESSA MARTINEZ; DAVID MASON, as
Special Administrator of the Estate of Tricia Mason, Deceased; DAVID MATAKIEWICZ; JEFF
MATAKIEWICZ; ASHA MATHEW; MARIAMMA MATHEW; MICHAEL MASTERS;
ELIZABETH TERESA McDERMOTT; SANDRA McELLIGOTT, Individually and as Special
Administrator of the Estate of Jane S. Kramer, Deceased; JOHN McGLYNN; AMY
McGOOGAN; JOE McGRATH; TYLER MCMASTER; JACQUALYNN McNEAL;
GREGORY MECH; SANDRA METZGER, as Parent and Next Best Friend of Sara Metzger;
BRIAN MEYER; VALERIE MEZYDIO; CLAUDIA MILLER; GERALD MITCHELL;
THOMAS MITCHELL; CHERYL GOLDBERG, as Special Administrator of the Estate of
Maureen Mossman, Deceased; PAUL MUNOZ; ROBERT M. MUDD; ERIC MUSILEK;
ERNEST MUSILEK; KAREN MYSLIWIEC, as the Special Administrator of the Estate of
Dennis Wika, Deceased; JASON NIEMOTH, as Special Administrator of the Estate of Annette
Niemoth, Deceased; LAYNE NOVAK; TERRENCE O’NEILL; HARRIET O’NEILL; BETH
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No. 1-19-1648
DIVIRGILIO, as Parent and Next Best Friend of Damen O’Shea; ROBERT O’TOOLE;
KATHLEEN H. PARKER; SANDRA STEWART, as Special Administrator of the Estate of
Sylvia Perry, Deceased; CATHERINE PETERSON; ERIC PLYMAN; DENNIS POLAK;
GARY PONDEL; NANCY S. POTTER; TAMI PRINCIPE; LISA PRZYBYLA; JENNIFER
RADA; MICHAEL RAMPICK; KAREN REGAN; DAVID REINICHE; PATRICIA
REINICHE; SANDY REINSTEIN, Individually and as Parent and Next Best Friend of
Lawrence Reinstein, a Minor; TERESA RICE; RICHARD T. RODRIGUEZ, as Special
Administrator of the Estate of Karen Rodriguez, Deceased; DANIELLE S. PRUITT, as Special
Administrator of the Estate of Martin K. Rodriguez, Deceased; SABRINA RODRIGUEZ;
NICHOLE ROSS; KARIE SCACCIA, as Parent and Next Best Friend of Anthony Scaccia, a
Minor; DANIEL DIXON, as Special Administrator of the Estate of Fredrick Schmaedeke,
Deceased; LINDA SCHOBER, Individually and as Parent and Next Friend of Stephanie Schober
and Matthew Schober; RYAN SCHOBER; GREG SEEBER; MORDENA SEPHUS; WESLEY
SERAFIN; VINCENT SERAFINI, as Special Administrator of the Estate of Wayne Serafini,
Deceased; MICHAEL SEWERYNOW; KAREN SILVA; HOWARD SMITH; LARRY
SNYDER, as Special Administrator of the Estate of Lillian Snyder, Deceased; JOANN SOLTIS;
LOUISE SOLNER; RICHARD SOLNER; LAWRENCE SPARKS; KIM GORZYCKI, as
Special Administrator of the Estate of Carol Spiewak, Deceased; ROSEMARY STASZEL;
SHIRLEY STEPP; AMY STERN; ANTHONY STERN; KRISTIN STRONER; SUE
STUDZINSKI; MARILYN SULLIVAN; RONALD SZWAJKOWSKI, as Special Administrator
of the Estate of Sharyn Szwajkowski, Deceased; AMY BOS; PAM TERRAZZINO, Individually
and as Special Administrator of the Estate of Vince Terrazzino, Deceased; ALEX TERZICH;
DEBORAH TERZICH; SARA TERZICH; HOUSTON THOMAS; ALYSSA THOMPSON;
WILLIAM THOMPSON; KRISTINA TIGGELAAR, Individually and as Special Administrator
of the Estates of Michael Bowers, Deceased, and John Tiggelaar, Deceased; LINDA
TOMCZUK; PAUL TON; SHELLY TORSAN; CURTIS HAILEY; JEFFREY JOHN TUTTLE,
Individually and as Parent and Next Best Friend of Aubrey Lynn Tuttle, a Minor, and Brianne
Marie Tuttle, a Minor; DIANE ULASICH; MARCY ULASICH; THOMAS ULASICH;
CONSTANTINO VIVACQUA; ARTHUR WACHOLZ; JUDY WACHOLZ; KEVIN WALSH,
as Special Administrator of the Estate of Patrick Walsh, Deceased; THOMAS BERNARD
WATTAM; ADRIANE WEYFORTH; ANNA WHITCOMB; SANDRA WHITE, as Special
Administrator of the Estate of Robert White, Deceased; TRACY WILKINSON; ANN WISE,
Individually and as Parent and Next Best Friend of Willow Victoria Raine Wise, a Minor; BETH
WOYTEK VIBERG, as Special Administrator of the Estate of Amanda Woytek, Deceased;
MICHELLE DOWNEY, as Special Administrator of the Estate of Brandi Young, Deceased;
KATHLEEN YOUNG; VALERIE YOUNG; MELISSA ZIRBEL; RITAS ZIUPSNYS; JUDY
ALICIA, as Special Administrator of the Estate of Edwin Alicia, Deceased; MERLINE ALLEN;
THEO ALLEN; RAY ATTWOOD, as Special Administrator of the Estate of Joanne Attwood,
Deceased; DENNIS BERNATOWICZ; CLAUDETTE BERNATOWICZ; BRIAN
DONAUBAUER; RON DROZD; MARIANNE DROZD; SARAH KUIKMAN, as Special
Administrator of the Estate of Joseph Bolisenga, Deceased; NANCY BRUCE, as Special
Administrator of the Estate of Gordon Bruce, Deceased; ANITIA COBB, as Special
Administrator of the Estate of Wesley Cobb, Deceased; KEN DARNELL, as Special
Administrator of the Estate of Donna Darnell, Deceased; CHIQUITA McMILLON, Individually
and as Special Administrator of the Estate of Barbara Grant, Deceased; PATRICK LACEY, as
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No. 1-19-1648
Special Administrator of the Estates of Bernice Lacey, Deceased, and Robert Lacey, Deceased;
DONALD LYNCH; KAREN LYNCH; LEANN RANKOVICH, as Special Administrator of the
Estate of Peter Markusic, Deceased; BARBARA ROBERSON, Individually and as Special
Administrator of the Estate of Jane Murawski, Deceased; CARL ROBERSON; BONNIE
ROTHMAN; TODD ROTHMAN; ABBY SARENA; JACK SARENA; ARNOLD WARD;
GENEVIVE WARD; DANIEL J. FLEMING, Individually and as Guardian of the Estate of
Daniel A. Fleming, a Disabled Adult; NANCY GANNON; WILLIAM GANNON; QUIANA
LINDSAY; FRED JONES; MICHELE MAAN DE KOK, as Executor of the Estate of John
Maan De Kok, Deceased; ANGELINE MORSOVILLO; SHIRLEY OLATUNDE; LANA
OLATUNDE; JANET ELLER, Individually and on Behalf of a Class of Similarly Situated
Individuals; DONNA SIGNORE, Individually and as Special Administratrix of the Estate of
Daryl Signore, Deceased; MARY SMETANA; LINDA SPENCER; DAWN FRY; MICHAEL
WAKEHAM, as Special Administrator of the Estate of Robert Wakeham, Deceased; JOYCE
WESOLOWSKI; KENNETH WESOLOWSKI; and LINDA JENSEN.
Defendants and Counterplaintiffs-Appellants
RONALD ARLEN; SYLVIA BAKER, as Special Administrator of the Estate of Elmer
Baker, Deceased; THEODORE BERCH; LAURA BLAND, as Special Administrator of the
Estate of George Bland, Deceased; MARY BOLISENGA, as Special Administrator of the Estate
of Joseph Bolisenga, Deceased; CAROLYN BUINICONTI; RAYMOND CANTELO; SUSAN
L. KHATTAB, as Special Administrator of the Estates of Betty S. Cheffer, Deceased, and
Donald H. Cheffer, Deceased; DIANE CIEZADLO; FRANK CIEZADLO; JOYCE
CONSDORF as Special Administrator of the Estate of John Consdorf, Deceased; TIMOTHY
AND LAURA DALEY, as Parents and Next Best Friends of Katherine Rose Daley, a Minor;
JOHN DEL MURO; SOCORRO DEL MURO; VINCENT DELUISE; DENNIS DEVRIES, as
Special Administrator of the Estate of Gwendolyn Devries, Deceased; SUSAN DIGUIDO;
MICHELLE DOWNEY; GERALDINE POTTER, as Special Administrator of the Estates of
Irene L. Doyle, Deceased, and William J. Doyle, Deceased; NORMA DUNCAN; CHARLENE
EARLEY; SUSAN EZERSKI as Special Administrator of the Estate of Florence Rachuck,
Deceased; ED FITZGIBBONS; GERALDINE FITZGIBBONS; EVERETT GALUSHA as
Special Administrator of the Estate of Mary Ann Galusha, Deceased; ADRIAN GARIBAY;
STANLEY GIERTUGA; DIANE GUSTAFSON, as Special Administrator of the Estate of
Elmer Gustafson, Deceased; DUANE HANACEK SR., as Special Administrator of the Estate of
Bernice Hanacek, Deceased; JOANNE HAASE; ROBERT HAASE; CLAUDIA JACKOWIAK,
Individually and as Special Administrator of the Estate of Richard Jackowiak, Deceased; RUBY
JANES; DAVID JEROSKI, Individually and as Special Administrator of the Estates of Albert
Jeroski, Deceased, and Mary Jeroski, Deceased; CHRISTINE JIMENEZ; LINDA JODY,
Individually and as Special Administrator of the Estates of ROBERT NIELSEN, Deceased, and
Karen Nielsen, Deceased; PERRY JORDAN, Individually and as Special Administrator of
Ingeborg Jordan, Deceased; KAREN KACZYNSKI; RONALD KACZYNSKI; GARY KISSEL,
as Special Administrator of the Estates of Kenneth Kissel, Deceased, and Marilyn Kissel,
Deceased; JUDY KLESKER, as Special Administrator of the Estate of Gloria Klesker,
Deceased; CHARLES KNOX; RONALD KOOIMA; BRUCE KRYSTOF, as Special
Administrator of the Estate of Ed Krystof, Deceased; ROSE LAMANTIA, as Special
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No. 1-19-1648
Administrator of the Estates of Mary Lamantia, Deceased, and Maurice Lamantia, Deceased;
BRADLEY LARSON, Individually and as Special Administrator of the Estate of B. Jean Larson,
Deceased; KATHLEEN LEWANDOWSKI, as Special Administrator of the Estate of Richard
Lewandowski, Deceased; THOMAS LEAHY; WILLIAM LOEFFEL, Individually and as
Special Administrator of the Estate of Sandra Loeffel, Deceased; CHRISTINE LOTZ, as Mother
and Next Friend of Nicole Munoz, a Minor; PAUL MUNOZ; FREDERICK LUNA, as Special
Administrator of the Estate of Emma Luna, Deceased; KATHY LUDWIG-HERNANDEZ;
DOUGLAS MACLEAN, as Special Administrator of the Estates of Barbara MacLean,
Deceased, and Harry MacLean, Deceased; MARIAMMA MATHEW; SANDRA McGELLIOT;
JOE McGRATH; JACQUALYNN MITCHELL; GERALD MITCHELL; CHERYL
GOLDBERG, as Special Administrator of Maureen Mossman, Deceased; ERIC MUSELIK;
JASON NIEMOTH, as Special Administrator of the Estate of Annette Niemoth, Deceased;
TERRENCE O’NEILL; HARRIET O’NEILL; BETH DIVIRGLIO, as Parent and Next Best
Friend of Damen O’Shea, a Minor; SANDRA STEWART, as Special Administrator of Sylvia
Perry, Deceased; KAREN REGAN; PATRICIA REINICHE; DANIELLE S. PRUITT, as
Special Administrator of the Estate of Martin K. Rodriguez, Deceased; DANIEL DIXON, as
Special Administrator of Frederick Schmaedeke, Deceased; MORDENA SEPHUS; WESLEY
SARAFIN; VINCENT SERAFINI, as Special Administrator of the Estate of WAYNE
SERAFINI, Deceased; MICHAEL SEWERYNOW; HOWARD SMITH; LARRY SNYDER, as
Special Administrator of the Estate of Lillian Snyder, Deceased; LOUISE SOLNER; KIM
GROZYCKI, as Special Administrator of Carol Spiewak, Deceased; SHIRLEY STEPP;
MARILYN SULLIVAN; HOUSTON THOMAS; KRISTINA TIGGELAAR, Individually and
as Special Administrator of John Tiggelar, Deceased; LINDA TOMCZUK; SHELLY TORSAN;
CONSTATING VIVACQUA; ARTHUR WACHOLZ; JUDY WACHOLZ; KEVIN WALSH, as
Special Administrator of Patrick Walsh, Deceased; THOMAS BERNARD WATTAM;
ADRIANE WEYFORTH; and SANDRA WHITE, as Special Administrator of the Estate of
ROBERT WHITE, Deceased.
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No. 1-19-1648
No. 1-19-1648
Cite as: General Casualty Co. of Wisconsin v. Burke Engineering Corp.,
2020 IL App (1st) 191648
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-CH-5263;
the Hon. Neil A. Cohen, Judge, presiding.
Attorneys Jay Paul Deratany and Thomas Stewart, of The Deratany Firm, of
for Chicago, for appellants.
Appellant:
Attorneys Eileen King Bower and Alexander W. Ross, of Clyde & Co US
for LLP, of Chicago, for appellees.
Appellee:
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