THE TRAVELERS INDEMNITY COMPANY and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiffs-Appellants,
ROGERS CARTAGE COMPANY, Defendant-Appellee.
from the Circuit Court of Cook County No. 10 CH 55238 The
Honorable Peter Flynn, Judge Presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court,
with opinion. Justices Harris and Mikva concurred in the
judgment and opinion.
2 Rogers Cartage Company is a trucking company that hauls
bulk liquid chemicals from a shipper to an end-user. Two of
Rogers's former truck cleaning facilities in Cahokia and
Sauget, located in St. Clair County, were the subject of
environmental contamination lawsuits. Rogers tendered defense
of the underlying claims to The Travelers Indemnity Company
and Travelers Property Casualty Company of America
(collectively, Travelers), seeking coverage under numerous
insurance policies issued by Travelers to Rogers. Travelers
ultimately paid all of Rogers's defense costs under a
reservation of rights, and Rogers eventually settled the two
underlying suits for a total of $9 million. Rogers then
sought indemnification from Travelers under numerous CGL and
auto policies, including the missing CGL and auto policies
that are the focus of these proceedings.
3 Travelers filed this declaratory judgment action in Cook
County circuit court seeking a declaration of the
parties' rights regarding the existence, terms, and
conditions of various missing insurance policies allegedly
issued by Travelers to Rogers in the 1960s and
1970s. It is undisputed that neither party can
locate originals or copies of the disputed policies, and that
there are no witnesses with contemporaneous knowledge of the
existence, terms, or conditions of the disputed policies.
There are two types of policies at issue: comprehensive
general liability (CGL) policies and automobile policies.
4 It is undisputed that Travelers issued Rogers CGL policies
for the policy periods of 1960-61 and 1965-66 (the
"bookend policies"). Travelers continued to issue
Rogers CGL policies through 1986. However, neither party
could locate originals or copies of CGL policies issued by
Travelers for the policy periods of 1961-62, 1962-63,
1963-64, or 1964-65. As the insured seeking coverage, Rogers
had the burden of establishing by a preponderance of the
evidence that the policies existed and the material terms and
conditions of the policies. Rogers introduced secondary
evidence consisting of various records produced by Travelers
during discovery. Rogers also introduce secondary evidence to
prove the terms and conditions of the CGL policies for the
policy periods of 1961-62, 1962-63, 1963-64, and
1964-65. Travelers contended that Rogers's
evidence was insufficient to establish the existence of CGL
policies for the policy periods of 1961-62, 1962-63, and
1963-64, or the terms and conditions of the CGL policies for
the policy periods of 1961-62, 1962-63, 1963-64, and 1964-65.
5 It is also undisputed that, starting in the 1940s and
continuing through the 1970s, Travelers issued Rogers
numerous auto policies. Again, the parties were unable to
locate original or copies of any auto policies issued by
Travelers to Rogers between 1961 and 1970, but Travelers
acknowledged the existence of the missing auto policies.
Rogers introduced secondary evidence that it contends
establishes the terms and conditions of the missing auto
policies, but Travelers contends that Rogers's evidence
is insufficient to establish the terms and conditions of the
missing auto policies.
6 The parties filed cross-motions for summary judgment on all
of the issues in dispute, and agreed that there was no
further discovery to do be done. Travelers's motion was
supported by numerous exhibits, including business records,
discovery responses, SL Letters (also identified as
"Interoffice Memoranda"),  an affidavit from Robert J.
Harris, Travelers's Second Vice President in the Special
Liability Coverage Unit, and various "Notice of Large
Loss" records. Rogers's cross-motion was supported
by letters written in 2000 by Hal C. Koplin, a claims
adjuster at Travelers, Koplin's discovery deposition
transcript, Travelers's commercial account claims
records, commercial account register records, an excess 1962
"Certificate of Insurance, " the 1960-61 and
1965-66 CGL bookend policies, Travelers's
"specimen" (or standardized) CGL policy forms used
between 1961 and 1965, and certificates of auto insurance
from the Illinois Department of Insurance.
7 The circuit court granted summary judgment in favor of
Rogers and denied summary judgment to Travelers, finding that
(1) Rogers proved the existence of the CGL policies for the
policy periods of 1961-62, 1962-63, 1963-64, and 1964-65 by a
preponderance of the evidence, (2) these CGL polices had the
same material terms and conditions as those set forth in the
1960-61 and 1965-66 "bookend" policies, and (3)
Rogers proved the terms and conditions of the auto policies
issued between 1960 and 1971. Travelers appeals.
9 On appeal, Travelers argues that Rogers did not prove (1)
the existence of the CGL policies for the policy periods of
1961-62, 1962-63, or 1963-64, (2) the material terms and
conditions of the alleged CGL policies for the policy periods
of 1961-62, 1962-63, 1963-64, or 1964-65, or (3) the terms of
the auto policies issued between 1961 and 1970. We address
these arguments in turn.
10 The parties disagree about the standard of review.
Travelers argues that our standard of review is de
novo. It is well-settled that we review a circuit
court's summary judgment ruling de novo. This is
particularly true where the parties file cross-motions for
summary judgment on the same issue, since they typically
agree that only a question of law is involved and invite the
court to decide the case based on the record before it.
Pielet v. Pielet, 2012 IL 112064, ¶¶ 28,
30. Summary judgment may be granted on cross-motions for
summary judgment where it is clear that all material facts
are before the court, the issues are defined, and the parties
agree that only a question of law is involved. Haberer v.
Village of Sauget, 158 Ill.App.3d 313, 317 (1987)
(citing Allen v. Meyer, 14 Ill.2d 284, 292 (1958)).
But it is also true that the mere filing of cross-motions for
summary judgment does not obligate the circuit court to grant
one of the motions, (Pielet, 2012 IL 112064, ¶
28), and if reasonable people could draw different inferences
from the undisputed facts, summary judgment is inappropriate
(Danada Square, LLC v. KFC National Management Co.,
392 Ill.App.3d 598, 607 (2009) (citing Mountbatten Surety
Co. v. Szabo Contracting, Inc., 349 Ill.App.3d 857, 867
11 Rogers argues, however, that we should review the circuit
court's decision under the manifest weight of the
evidence standard because the circuit court's ruling
"more closely resembles judgment after a bench
trial" or a motion for judgment under section 2-1110 of
the Code of Civil Procedure. See, e.g.,
Chicago's Pizza v. Chicago's Pizza Franchise,
Ltd., 384 Ill.App.3d 849, 859 (2008) ("The standard