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June 14, 1996


Appeal from the Circuit Court of Cook County. Honorable Arthur L. Dunne, Judge Presiding.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., and Hourihane, JJ., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

Plaintiffs Emerson Electric Company (Emerson) and 15 other corporate entities filed a declaratory judgment action against 62 insurance carriers, seeking a declaration of insurance coverage under numerous policies for actual and potential liabilities arising from environmental property damage at 57 sites diversely situated across the United States. One of those defendant-carriers, Travelers Insurance Company (Travelers), moved for partial summary judgment against Emerson, contending, inter alia, that its policy did not cover the risk as it pertained to a division of Emerson acquired after the inception of the policy. The trial court granted that motion and plaintiff Emerson appeals pursuant to Illinois Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).

It is undisputed from the submissions of the parties that Travelers issued Emerson a comprehensive general liability policy with effective dates of April 1, 1961 to April 1, 1964 (1961 policy). After the April 1, 1961 inception of that policy, Emerson acquired the assets of U.S. Electrical Motors, Inc. (USEM) on July 31, 1962, and from that point on operated USEM as an electrical motors manufacturing division with plants and facilities at several sites in several states throughout the country. Subsequently, Emerson incurred environmental liabilities due to USEM's alleged practice, during the relevant policy period, of disposing of the waste generated by its operations into the environment at several sites.

In the instant action, Emerson sought a declaration that coverage of those environmental liabilities exists under the terms of the adjustable premium provisions of the 1961 policy, the relevant terms of which will be set forth and discussed in the Discussion section which follows. Neither Emerson nor Travelers could locate a copy of the 1961 policy. In its motion for partial summary judgment, Travelers conceded, for purposes of that motion only, that it had issued the 1961 policy to Emerson and argued that its terms were the same as those in the 1956 policy that it had issued to Emerson. Travelers further argued that the adjustable premium provisions in that policy did not cover risks (referred to in the policy as hazards) such as USEM which Emerson acquired after the inception of the policy, but, rather, that pursuant to its other provisions, the policy only covered those Emerson hazards whose addresses were listed in the policy at the time of its inception. In that regard, Travelers argued that USEM, having been acquired after the inception of the policy, could not have been included in that list in the 1961 policy.

In support of its motion for summary judgment, Travelers submitted the affidavit of one of its vice presidents in its law department, Marc Van Vooren, attached to which was a copy of the 1956 policy, and also submitted excerpts from Emerson's responses to Travelers' interrogatories and requests for admissions. In his affidavit, Van Vooren stated that Travelers was unable to locate a copy of the policy, or any evidence that it ever was amended or endorsed after its April 1, 1961 inception to include coverage for Emerson's acquisition of USEM on July 31, 1962. Van Vooren also stated that the 1956 Travelers policy, attached to his affidavit, is in a form that was generally utilized by Travelers from 1956 through 1966. Travelers also pointed to the copy of the 1956 policy, which contains among its provisions a schedule listing the addresses of Emerson hazards existing at the time of the inception of that policy. Travelers also referred to Emerson's responses to Travelers' discovery requests, which confirmed that Emerson purchased the assets of USEM on July 31, 1962, and that prior to that date, USEM was a separate corporate entity not affiliated with Emerson.

In its response to Travelers' motion for summary judgment, Emerson contended that that motion was premature stating that Emerson needed more time to conduct discovery regarding the 1961 policy and its endorsements and premium adjustments. Emerson also argued that its USEM-related liabilities were covered under the terms of the purportedly identical 1956 policy. In support of its response, Emerson referred to the Van Vooren affidavit and the copy of the 1956 policy attached thereto, and additionally submitted Van Vooren's deposition testimony. In his deposition, Van Vooren testified that Travelers did not know if supplemental premiums had been collected from Emerson relating to Emerson's acquisition of USEM after the inception of the 1961 policy period. Finally, Emerson pointed to an excerpt of the language of the "Premium" provision of the 1956 policy, set forth and discussed below, and argued that pursuant thereto, coverage existed for hazards not listed in the policy or existing as a division of Emerson at the time of the inception of the policy.


On appeal, Emerson contends that the trial court erred in granting summary judgment because the policy language at issue provides coverage for USEM's operations even though Emerson acquired USEM after the inception of the policy, and further, that summary judgment was premature because additional discovery is needed to establish the terms of, endorsements to, and premiums paid on that policy.

It is well-established that a motion for summary judgment may be granted properly when "the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005 (West 1992); e.g., Torres v. City of Chicago, 261 Ill. App. 3d 499, 632 N.E.2d 54, 197 Ill. Dec. 985 (1994). In a ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits in the light most favorable to the nonmoving party. E.g., First State Insurance Co. v. Montgomery Ward & Co., 267 Ill. App. 3d 851, 642 N.E.2d 715, 204 Ill. Dec. 814 (1994); Stephen v. Swiatkowski, 263 Ill. App. 3d 694, 635 N.E.2d 997, 200 Ill. Dec. 658 (1994). Moreover, if fair-minded persons could draw different inferences from the undisputed facts, summary judgment should not be granted. See Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992); Anglin v. Oros, 257 Ill. App. 3d 213, 628 N.E.2d 873, 195 Ill. Dec. 409 (1993). The construction of a contract is a question of law for the trial judge and thus suitable for summary judgment. Srivastava v. Russell's Barbecue, Inc., 168 Ill. App. 3d 726, 523 N.E.2d 30, 119 Ill. Dec. 562 (1988). Appellate review of an order granting summary judgment is de novo. E.g., Hesselink v. R.L. Perlow Corp., 265 Ill. App. 3d 473, 637 N.E.2d 575, 202 Ill. Dec. 36 (1994); La Salle National Bank v. Skidmore, Owings & Merrill, 262 Ill. App. 3d 899, 635 N.E.2d 564, 200 Ill. Dec. 225 (1994); Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 587 N.E.2d 494, 167 Ill. Dec. 225 (1992). In reviewing that ruling, the appellate court must consider "all the facts and circumstances" and law related to the case and determine whether the trial court was correct. Fletcher v. Palos Community Consolidated School District No. 118, 164 Ill. App. 3d 921, 518 N.E.2d 363, 115 Ill. Dec. 838 (1987); Equity General Insurance Co. v. Patis, 119 Ill. App. 3d 232, 456 N.E.2d 348, 74 Ill. Dec. 846 (1983).

The 1956 Travelers policy to which the parties refer in lieu of the missing 1961 policy grants coverage and provides for subsequent changes in that coverage pursuant to the following terms:

"The Travelers Insurance Company * * * agree[s] with the insured, named in the declarations made a part hereof, in consideration of the payment of premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy * * * to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident." (Emphasis added).

"Changes. * * * nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by the President, a Vice President, Secretary or Assistant Secretary of the company; provided, however, changes may be made in the written portion of the declarations by a manager ...

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