Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County. No. 14 CH 20792
Honorable Moshe Jacobius, Judge Presiding.
Attorneys for Appellant: Angela R. Elbert and Eric Y. Choi,
of Neal Gerber & Eisenberg, LLP, of Chicago, for
Attorneys for Appellee: Joshua A. Boggioni, of Hinkhouse
Williams Walsh LLP, Karen M. Dixon, of Skarzynski Marick
& Black LLP, and Frank Slepicka, of Cohn Baughman &
Serlin, all of Chicago, for appellees.
CUNNINGHAM delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Harris concurred in the
judgment and opinion.
1 The plaintiff-appellant, Illinois Tools Works, Inc. (ITW),
filed a declaratory judgment action in the circuit court of
Cook County against the defendants-appellees, Ace Specialty
Insurance Company, New Hampshire Insurance Company, and
Zurich American Insurance Company (collectively, the
insurers). ITW sought a declaration that the insurers had a
duty to defend it from claims regarding environmental
contamination. The circuit court granted partial summary
judgment in favor of the insurers, and ITW filed this appeal.
For the following reasons, we affirm the judgment of the
circuit court of Cook County.
3 ITW is a diversified manufacturer headquartered in
Glenview, Illinois. In 2001, ITW acquired Diagraph
Corporation (Diagraph). Diagraph, along with its subsidiaries
and related companies, manufactured stencils, stencil
machines, ink, duplicators, and related products from 1947 to
2002 at various manufacturing facilities within a location in
south central Illinois known as the Crab Orchard Site.
4 The Crab Orchard Site consists of approximately 44, 000
acres of land and is the site of a former Illinois Ordnance
Plant. Large-scale bombs and munitions were manufactured at
the plant during World War II. After the war, the site was
designated as a U.S. fish and wildlife refuge. The United
States Fish and Wildlife Service also manages the site's
5 In 1987, an investigation of the Crab Orchard Site
identified certain areas that allegedly posed unacceptable
risks to human health and the environment, due in part to the
release of hazardous substances from the manufacturing
facilities located at the site. The United States
Environmental Protection Agency (EPA) subsequently listed the
Crab Orchard Site as a National Priorities List Superfund
6 The EPA divided the Crab Orchard Superfund Site into six
separate "operable units."One of the operable units is
the Miscellaneous Areas Operable Unit (MISCA-OU). MISCA-OU
contains a tract of land known as Site 36. The Crab Orchard
Superfund Site's former wastewater treatment plant was
located in Site 36.
7 In 1991, the United States government, through the EPA and
several other agencies, began developing response initiatives
to remediate the various hazardous operable units within the
Crab Orchard Superfund Site. The cleanup effort of Site 36
was mostly completed by 2006, and the United States
government incurred costs in excess of $8.9 million.
8 In 1997, the EPA created a seventh operable unit to address
additional releases of hazardous substances that were not
included in the six original units. That unit is known as the
Additional and Uncharacterized Sites Operable Unit (AUS-OU).
Diagraph's manufacturing facilities were located within
9 The Policies
10 Between 1974 and 1985, the insurers issued a series of
general liability insurance policies to Diagraph, which are
now applicable to ITW as Diagraph's successor (the
policies). Each policy provides an identical duty to defend
ITW against a "suit":
"[T]he company shall have the right and duty to defend
any suit against the insured seeking damages on account of
*** property damage *** and make such investigation and
settlement of any claim or suit as it deems expedient, but
the company shall not be obligated to pay any claim or
judgment or to defend any suit after ...