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05/16/96 AMERICAN STATES INSURANCE COMPANY v.

May 16, 1996

AMERICAN STATES INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
HARVEY KOLOMS, NINA KOLOMS, DOUG NIELSEN, CHARLES HOLLINGER, CAROLINE WRIGHT, GENE WOODMANSEE, TRANE, AN ILLINOIS CORPORATION, PRAIRIE VIEW ELECTRIC, AIR CONDITIONING & HEATING, LTD., AMERICAN ENGINEERING, INC., NORBERT LEWAKOWSKI, SALES CONSULTANTS OF LINCOLNSHIRE, AND HARTFORD INSURANCE CO., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN N. HOURIHANE, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, American States Insurance Company (American), appeals from a grant of summary judgment in favor of defendants, Harvey and Nina Koloms, and from the denial of its cross-motion for summary judgment. We exercise jurisdiction pursuant to Supreme Court Rule 304(a). 134 Ill. 2d R. 304(a).

American issued a commercial general liability insurance policy (policy) covering a two-story commercial structure located in Lincolnshire, Illinois (building). The building contained stores on the first floor and business offices on the second floor. The Kolomses were the beneficial owners of the building and were named as additional insureds in the policy.

A number of individuals employed by Sales Consultants of Lincolnshire, a tenant in the building, asserted claims against the Kolomses and others for injuries allegedly sustained on September 18, 1990, when they inhaled carbon monoxide and other noxious fumes and gases emitted from a faulty furnace in the building. The Kolomses sought coverage under the policy for the claims asserted against them. Acting under a reservation of rights, American provided the Kolomses with a defense to the liability claims. The reservation of rights was based upon a pollution exclusion clause contained in the policy which reads in pertinent part as follows:

"This insurance does not apply to:

***

f. (1) 'Bodily injury' or 'property damage' arising out of the actual, alleged, or threatened discharge, dispersal, release, or escape of pollutants:

(a) At or from premises you own, rent, or occupy;

***

Pollutants mean any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned, or reclaimed."

The policy also contained an amendment providing that subparagraph (a) of paragraph (1) of the pollution exclusion clause did "not apply to 'bodily injury' or 'property damage' caused by heat, smoke or fumes from a hostile fire." The amendment defined a hostile fire as "one which becomes uncontrollable or breaks out from where it was intended to be."

Relying on the pollution exclusion clause, American subsequently filed the instant declaratory judgment action asserting, inter alia, that it owed no duty to defend or indemnify the Kolomses in connection with the claims asserted against them. American and the Kolomses filed cross-motions for summary judgment. The trial court granted the Koloms' motion, denied ...


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