The opinion of the court was delivered by: Justice Wolfson.
Appeal from the Circuit Court of Cook County
Honorable Albert Green, Judge Presiding.
Maremont Corporation was held responsible for the cost of cleaning up pollution at six property sites or landfills over a 40-year period. The clean-up cost several million dollars. To recoup, Maremont first sought coverage from its primary insurance carriers. After the primary policies were disposed of, Maremont then made claims against its excess coverage insurance policies. This case is the product of those claims for excess coverage.
Maremont filed this declaratory judgment action against nine insurance companies, including Continental Casualty Company (Continental) and Lloyd's of London (London). Maremont alleged that under its excess coverage insurance policies with Continental and London, the insurers were required to indemnify it for damages arising out of the settlement of the environmental pollution suit.
Continental and London filed motions for summary judgment. The trial court granted those motions, adopting a pro rata allocation of damages and a requirement that Maremont horizontally exhaust its primary coverage before the excess policies were reached. We find there is no evidence Maremont's claims reached any of the defendants' excess policies. For that reason we affirm the trial court's order granting summary judgment.
Neither side disputes the underlying facts of the case.
Maremont's operations led to liability for environmental pollution at plant sites in Easley, South Carolina; Needham, Massachusetts; and City of Industry, California. Maremont also was held liable for pollution at landfills in Fort Wayne, Indiana; Hardage, Oklahoma; and Oklahoma City, Oklahoma. The pollution at each of the sites was ongoing and, in some cases, spanned a period of 40 or more years.
Maremont alleges it incurred "significant" damages for its settlement of claims and for cleanup of the affected sites.
Continental issued eight excess liability insurance policies to Maremont. The first policy was issued in 1959 and lapsed in 1962. Continental issued the second policy in 1968, and Maremont received continuing coverage from Continental until 1980, when the last policy lapsed.
The first policy issued by Continental, in effect from 1959 through 1962, insured Maremont for losses in excess of $200,000. It included the following language:
"[Continental will] indemnify the Insured for all sums which the Insured shall be obligated to pay by reason of liability *** imposed upon the Insured by law *** for damages, direct or consequential, and expenses, all as more fully defined by the term 'ultimate net loss' *** on account of *** property damage, caused by or growing out of each occurrence.
The term 'Occurrence,' wherever used herein, shall mean an unexpected or unintended event, or continuous or repeated exposure to conditions, which unexpectedly or unintentionally, causes injury, damage, or destruction during the policy period."
The policies issued by Continental which were in effect from 1968 through 1974 insured Maremont for losses over $200,000 and said Continental would:
"Indemnify the insured for all sums which the Insured shall be obligated to pay by reason of liability *** imposed upon the Insured by law *** for damages, direct or consequential, and expenses, all as defined by the term 'ultimate net loss' *** on account of *** Property Damage, caused by or arising out of each occurrence.
The term 'Occurrence' means an event or continuous or repeated exposure to conditions, which unexpectedly causes Personal Injury and/or Property Damage and/or Advertising Injury during the policy period."
The Continental policies covering Maremont from 1974 through 1980 said:
"[Continental] will indemnify the insured for loss in excess of the total applicable limits of liability of underlying insurance stated in the schedule. The provisions of the immediate underlying policy are, with respect to Coverage A, incorporated as part of this policy except for any obligation to investigate and defend and pay for costs and expenses incident to any of the same, the amounts of the limits of ...