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12/21/88 John Mason Et Al., v. the Home Insurance Company

December 21, 1988

JOHN MASON ET AL., PLAINTIFFS-APPELLANTS

v.

THE HOME INSURANCE COMPANY OF ILLINOIS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

532 N.E.2d 526, 177 Ill. App. 3d 454, 126 Ill. Dec. 841 1988.IL.1846

Appeal from the Circuit Court of Peoria County; the Hon. Robert E. Manning, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. SCOTT and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiffs, patrons of a local restaurant, who consumed tainted food, and certain of their family members, appeal from a trial court order granting the defendants' motions for summary judgment and denying the plaintiffs' cross-motion for summary judgment. They also appeal from the trial court order denying their motion to reconsider and vacate. We reverse.

In October 1983, JMK/Skewer, Inc. (Insured), owned and operated a restaurant known as the Skewer Inn in Peoria, Illinois. On October 14, 15, and 16 of that year, numerous patrons of the Skewer Inn purchased and consumed patty melt sandwiches contaminated with botulinal toxin, and subsequently were stricken with botulism poisoning. The National Center for Disease Control determined that epidemiologic evidence implicated the sauteed onions on the patty melts as the source of the outbreak. The injured patrons and their families filed suits against JMK/Skewer, Inc., and others.

A dispute arose as to the amount of coverage available under the Insured's policies. As a result of the dispute, on April 12, 1985, several of the plaintiffs filed the instant complaint for declaratory judgment against the defendants, two companies which had issued insurance policies to JMK/Skewer, Inc., to determine the amount of insurance coverage available to the Insured in the pending liability actions. Thereafter, all individuals known or thought to have claims against the Insured were made parties to the cause. The defendants answered the complaint for declaratory judgment and filed counterclaims for declaratory judgment. Finally, cross-motions for summary judgment were filed by the plaintiffs and the two insurance companies.

At the time of the injuries, the Insured was covered by a primary business owner's policy issued by The Home Insurance Company of Illinois (Home) and by an excess liability insurance policy issued by International Insurance Company (International). In their brief, the plaintiffs state that they do not contest the trial court's determination regarding the policy limits of the Home policy, so those policy provisions will not be set forth.

Section I of the International policy provides:

"The Company agrees to pay on behalf of the insured the ultimate net loss in excess of the retained limit hereinafter stated, which the insured may sustain by reason of the liability imposed upon the insured by law arising out of an occurrence or assumed by the insured under contract, for:

(a) Personal Injury Liability,

(b) Property Damages ...


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