2026 IL App (1st) 241465-U
SECOND DIVISION January 27, 2026
No. 1-24-1465
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
LIDO HOSPITALITY, INC. ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) 21 CH 2186 ) AIX SPECIALTY INSURANCE COMPANY, ) Honorable ) Neil H. Cohen, Defendant-Appellee. ) Judge Presiding _____________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court. Justices McBride and D.B. Walker concurred in the judgment.
ORDER
¶1 Held: Affirmed. Summary judgment for defendant insurer was proper. Plaintiff’s expert did not create question of fact as to whether policy exclusion applied.
¶2 The question in this appeal is whether damage to a hotel wall after a windstorm is
covered under a commercial insurance policy. More specifically, the issue is whether a pre-
existing damage exclusion applies. The circuit court found that it did and entered summary
judgment in favor of the insurer. We agree and affirm.
¶3 BACKGROUND
¶4 Plaintiff Lido Hospitality, Inc. (Lido) operates the Lido Motel in Franklin Park. In
November 2020, one of the brick veneer walls of the motel collapsed during a windstorm. At the No. 1-24-1465
time, Lido was insured under a policy issued by defendant AIX Specialty Insurance Company
(AIX) that took effect eight months before the collapse, or March 2020. The policy provided
coverage for damage caused by windstorms. But it also contained an exclusion: “This insurance
does not apply to any loss or damage directly or indirectly caused by or resulting from any
building damage existing at the time of this policy’s inception.”
¶5 Lido reported the loss to AIX. In investigating the claim, AIX determined that the brick
veneer collapsed due to pervasive wear and tear and corrosion of the underlying infrastructure
that secured the veneer—specifically, the components that anchored or tied the masonry veneer
to the underlying wooden substrate. AIX thus denied the claim under the exclusion mentioned
above, as pre-existing building damage either directly or indirectly caused the collapse.
¶6 Lido filed this action, seeking a declaration that the AIX policy covered his loss. AIX
responded that the pre-existing damage exclusion barred coverage. The parties engaged in
discovery and presented experts on the cause of the wall collapse.
¶7 AIX’s expert, Dr. Dennis McGarry, opined that the collapse was caused by the
combination of the high wind and corroded anchors, that the collapse could not have been caused
by either factor alone. In his words: “If you don’t have wind, then the wall is never going to
collapse if the ties aren’t good anymore. If you have high winds and the ties are still good, then
nothing is going to happen.”
¶8 Lido’s expert, Dr. Behrooz Moradi, a civil engineer, equivocated. While he opined that
the wind was the “main cause” of the collapse, he repeatedly refused to say that the corroded
anchors/ties did not also contribute to the collapse. On multiple occasions, he conceded it “was
possible” that the pre-existing damage contributed to the collapse.
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¶9 The parties filed cross-motions for summary judgment. In a written order, the court found
“no genuine issue of material fact that the collapse of the wall was, at a minimum, indirectly
caused by or resulted from the corroded anchor ties” and ruled “that coverage for the November
10, 2020 occurrence is excluded from the Policy.” The court entered summary judgment in favor
of AIX and denied Lido’s motion for summary judgment. Lido timely appealed.
¶ 10 ANALYSIS
¶ 11 Summary judgment is appropriate if the pleadings, depositions, admissions and
affidavits, when viewed in the light most favorable to the non-movant, show that there is no
genuine issue of any material fact, and the movant is entitled to judgment as a matter of law.
Pielet v. Pielet, 2012 IL 112064, ¶ 29. Our review is de novo. Id. ¶ 30. De novo review would be
appropriate, anyway, as we are interpreting an insurance contract. Country Mutual Insurance Co.
v. Livorsi Marine, Inc., 222 Ill. 2d 303, 311 (2006).
¶ 12 Our analysis requires us first to interpret the insurance policy and then, if necessary, to
determine if material questions of fact remain that preclude summary judgment.
¶ 13 I. Policy Interpretation
¶ 14 Insurance contracts are interpreted the same as other contracts. Bozek v. Erie Insurance
Group, 2015 IL App (2d) 150155, ¶ 19. We give effect to the intent of the parties as expressed
by the words of the policy. Livorsi, 222 Ill. 2d at 311. If the language is unambiguous, we give it
its plain and ordinary meaning. Id. We construe any ambiguity in favor of coverage. Id.
¶ 15 But the parties do not claim that the exclusion here is ambiguous. The language again:
“This insurance does not apply to any loss or damage directly or indirectly caused by or resulting
from any building damage existing at the time of this policy’s inception.” We agree that the
language is unambiguous. This exclusion is known as an anti-concurrent-causation provision.
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¶ 16 A concurrent cause is when “two perils converge at the same point in time,
contemporaneously and operating in conjunction” to cause a loss. Bozek, 2015 IL App (2d)
150155, ¶ 26. A concurrent-causation provision governs the level of coverage, if any, that exists
when there are multiple causes that contribute to a loss, some of which may be covered while
others are excluded. Id. ¶ 21.
¶ 17 An anti-concurrent-causation clause like the one here, on the other hand, is on the
“extreme” end of “narrow coverage.” Id. ¶ 23. Under an anti-concurrent-causation provision,
“there is no coverage if even one contributing cause is an excluded event.” Id. ¶ 23. Though
controversial, most jurisdictions have upheld them. See id. ¶ 37 (noting that “[t]he majority of
jurisdictions have rejected public policy challenges” to such provisions and declining to express
opinion under Illinois law). Lido does not challenge the clause here as against public policy.
¶ 18 AIX says the undisputed facts show that the corroded anchors were a cause of the wall’s
collapse and thus were at least an “indirect” cause of the loss under the exclusion, if not a direct
one. See id. ¶ 34 (because two causes “contributed concurrently” to loss, and one cause was
excluded from coverage, “the anti-concurrent-causation clause plainly precludes coverage.”).
¶ 19 Lido says AIX is reading the exclusion incorrectly. Lido cites the longstanding rule of
law in Illinois that a defendant takes a plaintiff as it finds her, often known as the “eggshell
plaintiff” rule. See Colonial Inn Motor Lodge, Inc v. Gay, 288 Ill. App. 3d 32, 45 (1997) (“A
negligence defendant must take the plaintiff as he finds him, even if the plaintiff’s ‘eggshell
skull’ results in his suffering an injury that ordinarily would not be reasonably foreseeable.”). In
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2026 IL App (1st) 241465-U
SECOND DIVISION January 27, 2026
No. 1-24-1465
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
LIDO HOSPITALITY, INC. ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) 21 CH 2186 ) AIX SPECIALTY INSURANCE COMPANY, ) Honorable ) Neil H. Cohen, Defendant-Appellee. ) Judge Presiding _____________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court. Justices McBride and D.B. Walker concurred in the judgment.
ORDER
¶1 Held: Affirmed. Summary judgment for defendant insurer was proper. Plaintiff’s expert did not create question of fact as to whether policy exclusion applied.
¶2 The question in this appeal is whether damage to a hotel wall after a windstorm is
covered under a commercial insurance policy. More specifically, the issue is whether a pre-
existing damage exclusion applies. The circuit court found that it did and entered summary
judgment in favor of the insurer. We agree and affirm.
¶3 BACKGROUND
¶4 Plaintiff Lido Hospitality, Inc. (Lido) operates the Lido Motel in Franklin Park. In
November 2020, one of the brick veneer walls of the motel collapsed during a windstorm. At the No. 1-24-1465
time, Lido was insured under a policy issued by defendant AIX Specialty Insurance Company
(AIX) that took effect eight months before the collapse, or March 2020. The policy provided
coverage for damage caused by windstorms. But it also contained an exclusion: “This insurance
does not apply to any loss or damage directly or indirectly caused by or resulting from any
building damage existing at the time of this policy’s inception.”
¶5 Lido reported the loss to AIX. In investigating the claim, AIX determined that the brick
veneer collapsed due to pervasive wear and tear and corrosion of the underlying infrastructure
that secured the veneer—specifically, the components that anchored or tied the masonry veneer
to the underlying wooden substrate. AIX thus denied the claim under the exclusion mentioned
above, as pre-existing building damage either directly or indirectly caused the collapse.
¶6 Lido filed this action, seeking a declaration that the AIX policy covered his loss. AIX
responded that the pre-existing damage exclusion barred coverage. The parties engaged in
discovery and presented experts on the cause of the wall collapse.
¶7 AIX’s expert, Dr. Dennis McGarry, opined that the collapse was caused by the
combination of the high wind and corroded anchors, that the collapse could not have been caused
by either factor alone. In his words: “If you don’t have wind, then the wall is never going to
collapse if the ties aren’t good anymore. If you have high winds and the ties are still good, then
nothing is going to happen.”
¶8 Lido’s expert, Dr. Behrooz Moradi, a civil engineer, equivocated. While he opined that
the wind was the “main cause” of the collapse, he repeatedly refused to say that the corroded
anchors/ties did not also contribute to the collapse. On multiple occasions, he conceded it “was
possible” that the pre-existing damage contributed to the collapse.
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¶9 The parties filed cross-motions for summary judgment. In a written order, the court found
“no genuine issue of material fact that the collapse of the wall was, at a minimum, indirectly
caused by or resulted from the corroded anchor ties” and ruled “that coverage for the November
10, 2020 occurrence is excluded from the Policy.” The court entered summary judgment in favor
of AIX and denied Lido’s motion for summary judgment. Lido timely appealed.
¶ 10 ANALYSIS
¶ 11 Summary judgment is appropriate if the pleadings, depositions, admissions and
affidavits, when viewed in the light most favorable to the non-movant, show that there is no
genuine issue of any material fact, and the movant is entitled to judgment as a matter of law.
Pielet v. Pielet, 2012 IL 112064, ¶ 29. Our review is de novo. Id. ¶ 30. De novo review would be
appropriate, anyway, as we are interpreting an insurance contract. Country Mutual Insurance Co.
v. Livorsi Marine, Inc., 222 Ill. 2d 303, 311 (2006).
¶ 12 Our analysis requires us first to interpret the insurance policy and then, if necessary, to
determine if material questions of fact remain that preclude summary judgment.
¶ 13 I. Policy Interpretation
¶ 14 Insurance contracts are interpreted the same as other contracts. Bozek v. Erie Insurance
Group, 2015 IL App (2d) 150155, ¶ 19. We give effect to the intent of the parties as expressed
by the words of the policy. Livorsi, 222 Ill. 2d at 311. If the language is unambiguous, we give it
its plain and ordinary meaning. Id. We construe any ambiguity in favor of coverage. Id.
¶ 15 But the parties do not claim that the exclusion here is ambiguous. The language again:
“This insurance does not apply to any loss or damage directly or indirectly caused by or resulting
from any building damage existing at the time of this policy’s inception.” We agree that the
language is unambiguous. This exclusion is known as an anti-concurrent-causation provision.
-3- No. 1-24-1465
¶ 16 A concurrent cause is when “two perils converge at the same point in time,
contemporaneously and operating in conjunction” to cause a loss. Bozek, 2015 IL App (2d)
150155, ¶ 26. A concurrent-causation provision governs the level of coverage, if any, that exists
when there are multiple causes that contribute to a loss, some of which may be covered while
others are excluded. Id. ¶ 21.
¶ 17 An anti-concurrent-causation clause like the one here, on the other hand, is on the
“extreme” end of “narrow coverage.” Id. ¶ 23. Under an anti-concurrent-causation provision,
“there is no coverage if even one contributing cause is an excluded event.” Id. ¶ 23. Though
controversial, most jurisdictions have upheld them. See id. ¶ 37 (noting that “[t]he majority of
jurisdictions have rejected public policy challenges” to such provisions and declining to express
opinion under Illinois law). Lido does not challenge the clause here as against public policy.
¶ 18 AIX says the undisputed facts show that the corroded anchors were a cause of the wall’s
collapse and thus were at least an “indirect” cause of the loss under the exclusion, if not a direct
one. See id. ¶ 34 (because two causes “contributed concurrently” to loss, and one cause was
excluded from coverage, “the anti-concurrent-causation clause plainly precludes coverage.”).
¶ 19 Lido says AIX is reading the exclusion incorrectly. Lido cites the longstanding rule of
law in Illinois that a defendant takes a plaintiff as it finds her, often known as the “eggshell
plaintiff” rule. See Colonial Inn Motor Lodge, Inc v. Gay, 288 Ill. App. 3d 32, 45 (1997) (“A
negligence defendant must take the plaintiff as he finds him, even if the plaintiff’s ‘eggshell
skull’ results in his suffering an injury that ordinarily would not be reasonably foreseeable.”). In
other words, if the hotel had corroded anchors, AIX had to take the hotel as it found it—it had to
accept that pre-existing condition and cannot exclude coverage on that basis.
-4- No. 1-24-1465
¶ 20 In Gay, we applied the eggshell-plaintiff doctrine to a hotel. Id. There, the defendant
backed his car into a small HVAC unit near the wall of the hotel, which caused a break in the
HVAC unit’s gas line. Id. at 37. Ultimately, the gas leaked into the hotel’s laundry room and
reached a pilot light on a dryer, resulting in an explosion. Id.
¶ 21 The hotel sued the driver. The circuit court entered summary judgment for the driver,
finding the overall set of circumstances to be unforeseeable, leaving the plaintiff unable to
establish either duty or proximate cause. Id. at 43. We reversed, recognizing that “a building
rather than a person may have had an ‘eggshell skull,’ ” and thus the negligent driver took the
plaintiff hotel as he found it. Id. at 45.
¶ 22 Lido is correct that the “eggshell plaintiff” rule is alive and well in Illinois. See Lough v.
BNSF Railway Co., 2013 IL App (3d) 120305, ¶ 30; Arteaga v. Watson, 2024 IL App (2d)
220406-U, ¶ 72. But the problem for Lido, as the circuit court noted, is that the “eggshell
plaintiff” rule is a common-law tort principle, not a canon of contract construction.
¶ 23 True, Gay involved an insurance company and a hotel for a plaintiff, but that’s where the
similarities to this case end. Make no mistake, Gay was a garden-variety negligence action, plus
a Dramshop Act claim against the bar that served the driver alcohol. Id. at 35. The insurer was a
party only because it had already paid out a claim to the hotel and thus stood in the hotel’s shoes
for the purpose of recovery. Id. In the end, Gay serves as nothing more than a reiteration of a tort
principle in a tort action that, unfortunately for Lido, has no bearing on our analysis.
¶ 24 What matters here, obviously, is the plain-language interpretation of this exclusion. And
the policy language here clearly does not adopt the sentiment of the eggshell-plaintiff rule; if
anything, it does the polar opposite. In providing that AIX will not cover any damage “directly or
indirectly caused by *** any building damage existing at the time of this policy’s inception,” the
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insurer does anything but take the hotel as it finds it. This language means that if (1) some
damage to the building (2) that predates the issuance of the policy (3) contributes in whole or in
part to the claimed loss, coverage will be excluded.
¶ 25 All of which is to say that, as the circuit court ruled and as AIX urges, if the pre-existing
corrosion in the anchors even indirectly caused the collapse of the wall, then the exclusion
applies, and Lido is not entitled to coverage.
¶ 26 II. Question of Material Fact
¶ 27 Now that we have established that the corroded anchors need only have indirectly caused
the wall’s collapse, and need not be the direct or main or sole cause for the exclusion to apply,
we turn to whether a question of fact exists on this question to preclude summary judgment.
¶ 28 We start with the uncontested facts. There is no dispute that the brick wall that collapsed
in November 2020 was built in the 1950s; that the anchors securing the wall were corroded from
water damage; that this corrosion was present before the policy was issued eight months earlier
in March 2020; that there is no evidence that the wall was repaired at any time since it was built.
¶ 29 As for the policy exclusion, the parties do not dispute that the corroded anchors
constituted “building damage” under the policy exclusion. The parties even agree that the high
winds that day were at least a cause of the collapse.
¶ 30 The parties at least implicitly agree on something else: expert testimony was necessary to
establish causation here. That is undeniably true. An expert is necessary when the testimony
requires specialized knowledge beyond the ken of the layperson. See Ill. R. Evid. 702 (eff. Jan.
1, 2011) (“If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion
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or otherwise.”); Ill. R. Evid. 701 (eff. Jan. 1, 2011) (lay witness may not testify to opinion “based
on scientific, technical, or other specialized knowledge within the scope of Rule 702”);
Thompson v. LaSpisa, 2023 IL App (1st) 211448, ¶¶ 33-34.
¶ 31 The testimony of the experts covered matters of metallurgy and civil engineering that
went well beyond the ken of the layperson. The parties correctly rely on expert testimony on
causation. So this comes down to a battle of the experts, as both parties recognize.
¶ 32 AIX’s expert, Dr. McGarry, was clear that two factors worked in tandem, and that neither
factor could have succeeded without the other, to cause the wall’s collapse: the high winds and
the corroded anchors. The corroded anchors, alone, did not cause the collapse—they needed the
high winds. The high winds, alone, did not cause the collapse—they needed the corroded
anchors. If that theory prevails, AIX was entitled to summary judgment, because the corroded
anchors were a pre-existing condition that at least indirectly caused the collapse.
¶ 33 Once a party has established its basis for summary judgment, the non-movant must
present some evidence that would arguably entitle it to success at trial. Berke v. Manilow, 2016
IL App (1st) 150397, ¶ 31. The question is whether the testimony of Lido’s expert, Dr. Moradi,
was sufficient to create a triable question. We agree with the circuit court that it was not.
¶ 34 In its briefing on appeal, Lido repeatedly claims that its expert, Dr. Moradi, opined that
the windstorm was the “exclusive” cause or the “sole” cause of the collapse, that the corroded
anchors “played no role in the collapse whatsoever.” If that were true, we would have a disputed
question. But that is not what Dr. Moradi said.
¶ 35 In his report and during his deposition, Dr. Moradi referred to the windstorm as the “main
cause” of the wall’s collapse. And given many opportunities during his deposition, he never
-7- No. 1-24-1465
ruled out that the corroded anchors were a secondary, indirect cause of the collapse. In fact, he
readily admitted that he could not rule them out as a cause:
“Q. Do you agree that the secondary cause of the collapse could be the rusted anchors?
A. They could have participated, yes.”
Q. So they could have indirectly attributed [sic] to the wall’s collapse? The rusty anchor
could have indirectly contributed to the wall’s collapse coupled with the storm?
A. When you say could, yes, they could.
Q. You can’t rule that out, fair?
A. Yes.”
¶ 36 Nor are we merely isolating one passage here, based on sharp questioning from opposing
counsel. When speaking at length on the topic, Dr. Moradi freely said the same thing:
“Q. Your opinion is that the main cause of the wall’s collapse was wind, correct?
A. Yes.
Q. So if there is a main cause, would that mean there is a secondary cause?
A. There could be other causes, also, that contributed to that. Let’s say you are talking
about rusty anchors. Let’s say if the anchors are not rusty, was that possible that we could
have a like—you could prevent the collapse? It is possible. We cannot say it is not
possible. It was possible that we didn’t have any rusty [sic], and we had enough anchor,
and then we might not have collapse. It is possible, but based on my opinion, if you
didn’t have that storm, we wouldn’t have any of this damage. Main cause is the storm.”
¶ 37 Unfortunately for Lido, Dr. Moradi’s opinion that “if you didn’t have that storm, we
wouldn’t have any of this damage,” is insufficient to defeat the policy exclusion here, which
denies coverage if the corroded anchors were even an indirect cause of the collapse. Indeed,
-8- No. 1-24-1465
AIX’s expert, Dr. McGarry, testified to the same thing—the wall would not have collapsed
without the windstorm. But Dr. McGarry also testified that the wall would not have collapsed
absent the corroded anchors, and Dr. Moradi did not reject or contradict that opinion in any way.
He said Dr. McGarry’s conclusion was “possible,” that he could not rule it out.
¶ 38 Lido argues that Dr. Moradi was doing nothing more than allowing, in an almost
metaphysical sense, that “anything’s possible,” as one might say. But this was not an occasion
for wistful conversations. Lido is correct that experts have to speak in terms of a reasonable
degree of certainty, not absolute certainty, but Dr. Moradi never testified, to a reasonable degree
of scientific certainty, that the corroded anchors were not one of the causes of the wall’s collapse.
Lest we be accused of relying on formal buzzwords, Dr. Moradi never opined in any way that the
corroded anchors were not a cause. He didn’t say it was unlikely that the corroded anchors were
a cause or that he doubted they were a cause. Nor did his report reflect any such sentiment.
¶ 39 To the contrary, Dr. Moradi was clear that it was entirely possible that the corroded
anchors were at least indirectly to blame; his larger point, to which he continually returned, was
that the high winds were the principal cause. Unfortunately for Lido, that opinion is not enough
to avoid application of the policy exclusion here.
¶ 40 Lido warns that our interpretation of this exclusion will lead to insureds losing coverage
for latent conditions of which they are obviously unaware. We agree that the coverage here was
quite narrow. But again, Lido does not claim that this exclusion is void as against public policy,
nor did it do so in the circuit court, and we will not (we cannot) play advocate and take up that
mantle for Lido. 1010 Lake Shore Association v. Deutsche Bank National Trust Co., 2015 IL
118372, ¶ 14 (“Issues not raised in either the trial court or the appellate court are forfeited”);
Tuna v. Wisner, 2023 IL App (1st) 211327, ¶ 56 (searching for unargued errors on appellant’s
-9- No. 1-24-1465
behalf “ ‘transform[s] the court’s role from that of jurist to advocate’ and forces the court ‘to
speculate about the arguments the parties might have presented had the issues been raised.’ ”)
(quoting People v. Givens, 237 Ill. 2d 311, 328 (2010)).
¶ 41 Beyond that, Illinois generally adheres to the concept of freedom of contract and the
notion, stated bluntly, that you get what you pay for. See Braye v. Archer-Daniels-Midland Co.,
175 Ill. 2d 201, 215 (1997) (public policy of Illinois favors freedom of contract); National Fire
Insurance Co. of Hartford & Continental Insurance Co. v. Visual Pak Co., Inc., 2023 IL App
(1st) 221160, ¶ 109 (“sometimes the insured knowingly obtains limited coverage, and the
premiums are set accordingly.”) Less coverage generally means lower premiums; the more
expansive the coverage, the more expensive the premium.
¶ 42 We do not know why Lido chose this policy, though one might venture that it was a less
expensive policy in light of the anti-concurrent-causation exclusion before us. In any event, the
exclusion language clearly applies, and it is our duty to interpret it as written.
¶ 43 As the exclusion applies here, and we find no question of material fact precluding
summary judgment, we affirm the circuit court’s judgment.
¶ 44 CONCLUSION
¶ 45 The judgment of the circuit court is affirmed.
¶ 46 Affirmed.
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