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Jean Ware, As Personal Representative of the Estate of v. First Specialty Insurance Corporation

January 11, 2013

JEAN WARE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KELLY MCKINNEL, DECEASED; NATALIE BROUGHAM; REBECCA CHELIN; JAMES CHIAPPETTA; AMY CHUMLEY; DERRICK CUSICK; JONATHAN D'AUGUSTA; DAVID DERMENJIAN; ANJALEE DESAI; BENJAMIN EISENBERG; JEREMY FARMER,
PERSONAL REPRESENTATIVE OF THE ESTATE OF SAM FARMER,
OF DECEASED; MIA FITZGERALD, AS SPECIAL ADMINISTRATOR
OF THE ESTATE OF SHEA FITZGERALD, DECEASED; GILMORE S. CHANCERY DIVISION HAYNIE, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF MARGARET G. HAYNIE, DECEASED; SARAH HOFFMAN; DENNIS E. HULL; ADAM HURDER; JORDAN HURDER; LYNDSIE JACKSON; ROBERT V. JACKSON, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JOHN T. JACKSON, DECEASED; JENNIFER JOHNSON; MUHAMMAD KARIMUDDIN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MUHAMMED HAMEEDUDDIN, DECEASED;
ALAN J. KLINGER; KENNETH R. KORANDA, AS EXECUTOR OF THE ESTATE OF ROBERT A. KORANDA, DECEASED; PHYLLIS M. KUMPF, AS ADMINISTRATOR OF THE ESTATE OF ERIC F. KUMPF, DECEASED; JASON LEV; JENNIFER S. LEVIN; MEGHAN R. LIMACHER; J. PATRICK LUPTON, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EILEEN LUPTON, DECEASED; MOLLY NILAN; THOMAS J. O'CONNELL; SEAN O'DELL; ELIZABETH PAGEL, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF KELLY PAGEL, DECEASED; WILLIAM PRIMACK; GEOFFREY C. RAPP; ALIBE ROBERTSON; MELISSA SHAW; JAMES A. SHERIFF, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF KATHERINE E. SHERIFF, DECEASED; BONNIE SORKIN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JULIE SORKIN, DECEASED; JAY SORKIN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JULIE SORKIN, DECEASED; CULLAN STEFANIK; ALEXIS TESSLER; WHITNEY TURNER; AND HENRY J. WISCHERATH, SR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HENRY J. WISCHERATH, JR., A/K/A JAY WISCHERATH, DECEASED; PLAINTIFFS-APPELLANTS,
v.
FIRST SPECIALTY INSURANCE CORPORATION, DEFENDANT-APPELLEE.



Appeal from the as Circuit Court Cook County, No. 2010 CH 10841 Honorable Franklin U. Valderama, Judge Presiding.

The opinion of the court was delivered by: Justice Taylor

JUSTICE TAYLOR delivered the judgment of the court, with opinion. Justices Howse and Palmer concurred in the judgment and opinion.

OPINION

¶ 1 At approximately 12:30 a.m. on June 29, 2003, a three-story porch located at the rear of the property at 713 West Wrightwood in Chicago, Illinois collapsed during a party, resulting in the deaths of 12 individuals and injuries to 29 more. Those individuals and their estates (collectively plaintiffs) ultimately settled their claims with the building owner and others (collectively defendants) in the underlying tort action and obtained an assignment of rights against appellant, First Specialty Insurance Corporation (First Specialty). Plaintiffs then filed this declaratory action against First Specialty, arguing that because the porch collapse constituted more than one occurrence, First Specialty was liable to them for the aggregate limit of the relevant insurance policy, $2 million, rather than the $1 million per occurrence limit that First Specialty had already paid. The trial court granted summary judgment in favor of First Specialty and plaintiffs appealed.

¶ 2 I. BACKGROUND

¶ 3 The following facts were stipulated to by the parties in a jointly filed "Agreed Statement of Facts" filed with the trial court on March 30, 2011, and therefore are not in dispute in this

¶ 4 A. The Collapse

¶ 5 In 2003, Phillip Pappas owned the three-story building located at 713 West Wrightwood in Chicago, Illinois. The building contained apartment units on each floor. Attached to the rear of the building was a three-story porch system, with stairways leading from the ground to the first floor, from the first to the second floor, and from the second to the third floor. On the evening of June 28, 2003, the residents of the second- and third-floor apartments hosted a party. At approximately 12:30 a.m. on the morning of June 29, 2003, while all of the plaintiffs were standing on either the second or third floor, the third floor of the porch suddenly collapsed onto the second floor of the porch, which immediately collapsed onto the first floor of the porch. The collapse was not interrupted by any intervening human acts or other preceding or subsequent events.

¶ 6 Ultimately, 13 individuals died and 29 more were injured "directly and solely from the porch collapse." Many of those injuries did not manifest themselves for days or weeks after the collapse. The parties agree that "[t]here are no intervening acts or circumstances which could have or did contribute to and/or cause the deaths, injuries and/or mental conditions" suffered by the plaintiffs.

¶ 7 B. The Policy

¶ 8 At the time of the accident, Pappas' property was insured by policy No. IRG 49077 (the policy) issued by defendant First Specialty for the policy period from February 1, 2003, to February 1, 2004. The other named insureds on the policy were Michael Aufrecht, L.G. Properties Co., and Restoration Specialists, LLC (the insureds). The policy's "Coverage A Bodily Injury and Property Damage Liability" coverage unit had an "Occurrence Limit of $1,000,000 and a General Aggregate Limit of $2,000,000, subject to a $5,000 per occurrence deductible."

¶ 9 The policy's "Limits of Insurance" section provided, in pertinent part:

"1. The Limits of Insurance Shown in the Declarations and the rules below fix the most we will pay regardless of the number of:

a. Insureds;

b. Claims made or 'suits' ...


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