Central Illinois Public Service Co. v. Allianz Underwriters Insurance

608 N.E.2d 155, 240 Ill. App. 3d 598, 181 Ill. Dec. 82, 1992 Ill. App. LEXIS 2007
CourtAppellate Court of Illinois
DecidedDecember 11, 1992
Docket1-91-3431
StatusPublished
Cited by17 cases

This text of 608 N.E.2d 155 (Central Illinois Public Service Co. v. Allianz Underwriters Insurance) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Central Illinois Public Service Co. v. Allianz Underwriters Insurance, 608 N.E.2d 155, 240 Ill. App. 3d 598, 181 Ill. Dec. 82, 1992 Ill. App. LEXIS 2007 (Ill. Ct. App. 1992).

Opinion

JUSTICE RAKOWSKI

delivered the opinion of the court:

This appeal arises from a declaratory judgment action brought by Central Illinois Public Service Company (CIPS) regarding liability coverage under two excess liability policies issued by Harbor Insurance Company (Harbor) and one policy issued by Columbia Casualty Company (Columbia). Harbor and Columbia filed motions for partial summary judgment which the trial court granted, finding that policies Nos. 126716, 127532, and RDX 1864547 did not provide liability coverage for the investigation, remediation, and prophylactic costs incurred and to be incurred by CIPS as a result of the environmental damage arising from its former gas manufacturing plant in Taylor-ville, Illinois, based upon the pollution exclusion found in these policies. The trial court also ruled that the partial summary judgment order was final and appealable pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). CIPS has appealed, raising the issue of whether the pollution exclusion provision in Harbor’s and Columbia’s excess liability policies bars coverage to CIPS for damages at the Taylorville site.

The Taylorville facility was purchased by CIPS in 1912. The plant ceased operations in 1930 and was sold in 1961. In October of 1985 the release of water gas tar was discovered at and around the Taylor-ville site. CIPS acknowledged that it was the responsible party pursuant to section 22.2(f)(1) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. IIIV2, par. 1022.2(f)(1)). Under this provision, a former owner or operator is held strictly liable for the release or threat of release of a hazardous substance such as water gas tar. As a result of this occurrence CIPS was exposed to substantial liability. However, Harbor and Columbia denied coverage. In August 1987 CIPS filed a complaint seeking a judgment declaring, inter alia, the respective rights and obligations of CIPS, Harbor and Columbia regarding the alleged environmental damage at and around the Taylor-ville site. Harbor moved for partial summary judgment, asserting that the policies contained “an absolute pollution exclusion” which barred coverage for any damages arising from pollution. Because Columbia’s policy No. RDX 1864547 provides coverage excess to Harbor’s policy No. 126716 and incorporated its provisions, Columbia joined in Harbor’s motion. In response to the motion, CIPS contended that endorsement 2, which contained the relevant exclusion, was ambiguous and was not intended to exclude coverage for “sudden and accidental” pollution damage like that which occurred at the Taylorville site.

The trial court recognized that the language in endorsement 2 was “clumsy and unnecessarily muddled” but found that it barred coverage for damages due to pollution.

CIPS contends that endorsement 2 is ambiguous and was not intended to preclude coverage for sudden and accidental pollution damage like the damage which occurred at the Taylorville site. The language of endorsement 2, which is identical in both policies at issue, provides:

“It is understood and agreed that except insofar as coverage is available to the assured in the underlying insurances as set out in the schedule of underlying policies, this insurance shall not apply to any loss arising out of the contamination or pollution.
Notwithstanding the foregoing, it is understood and agreed that this insurance does not apply to bodily injury, personal injury, or property damage arising out of the discharge, dispersal, release or escape of:
(1) smoke, vapors, soots, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere or any watercourse or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
(2) Oil or other petroleum substance or derivative (including any oil refuse or oil mixed with wastes) into or upon any watercourse or body of water, whether or not such discharge, dispersal, release or escape is sudden and accidental, but the exclusion (2) shall apply with respect to operations described as follows: ***.”

CIPS first argues that the phrase “notwithstanding the foregoing” makes endorsement 2 ambiguous. “Notwithstanding” is defined in the dictionary as “without prevention or obstruction from or by,” “in spite of,” or “nevertheless.” (Webster’s Third New International Dictionary 1545 (1986).) CIPS claims that the first paragraph bars coverage for contamination or pollution unless coverage is available through an underlying insurance policy, but the second paragraph excludes coverage if the discharge of pollutants is not sudden and accidental, or for oil discharges into water arising from one of the operations listed even if the discharge is sudden and accidental. Thus, according to CIPS, the effect of the second paragraph of the endorsement beginning with the language “Notwithstanding the foregoing,” which refers to the exclusion in the first paragraph, is to eliminate the “underlying insurance” requirement and replace it with an exclusion where the occurrence is not sudden and accidental. Harbor’s interpretation of the endorsement is that the “sudden and accidental” requirement is in addition to the “underlying insurance” requirement.

CIPS argues that because the endorsement is subject to two interpretations, the language is, at best, ambiguous. Where an exclusionary clause is ambiguous any reasonable interpretation by the policyholder must be adopted. (J G Industries, Inc. v. National Union Fire Insurance Co. (1991), 218 Ill. App. 3d 1061, 1065, 578 N.E.2d 1259; Simioni v. Continental Insurance Cos. (1985), 135 Ill. App. 3d 916, 918, 482 N.E.2d 434.) However, this principle does not require an unreasonable interpretation which would have the effect of invalidating the contract between the parties. J G Industries, Inc., 218 Ill. App. 3d at 1066.

The question of whether a policy is ambiguous is a matter of law, in which the court makes the determination by examining the language at issue in light of the policy as a whole. Thus, the court must construe the policy in its entirety, giving effect to all parts of the policy as is possible, including endorsements. (Management Support Associates v. Union Indemnity Insurance Co. (1984), 129 Ill. App. 3d 1089, 1092-93, 473 N.E.2d 405.) Where the language of the policy is unambiguous, the policy must be understood according to its plain, ordinary and popular meaning. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 495, 475 N.E.2d 872; Marsh v. Metropolitan Life Insurance Co. (1979), 70 Ill. App. 3d 790, 796, 388 N.E.2d 1121.

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Cite This Page — Counsel Stack

Bluebook (online)
608 N.E.2d 155, 240 Ill. App. 3d 598, 181 Ill. Dec. 82, 1992 Ill. App. LEXIS 2007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-illinois-public-service-co-v-allianz-underwriters-insurance-illappct-1992.