United States: Illinois Appellate Court Clarifies Duty To Defend Standards

In a decision issued on January 13, 2015, the Illinois Appellate Court affirmed a trial court's ruling that insurers had a duty to defend an insured against the thousands of lawsuits filed against it claiming injuries from welding products that contained asbestos and other harmful chemicals. This opinion is significant in its discussion of the application of the duty to defend when there is little possibility that the insured would actually be liable for a claim involving injury during the insurers' policy periods but the underlying complaints contain little by way of specific allegations regarding the timing of the injury. The court also rejected the insurers' argument that a pro rata allocation should be used to allocate defense costs to the insured for the time period when the insured elected to self-insure. A copy of the opinion in Illinois Tool Works Inc. v. Travelers Casualty and Surety can be found here.    

The case involved coverage for toxic tort cases alleging that underlying plaintiffs were injured as a result of exposure to asbestos, benzene, manganese, and other harmful materials.The insured, Illinois Tool, manufactured and distributed tools, equipment, finishing systems, and consumables but was not in the welding consumable business until an acquisition in 1993. In the underlying cases, Illinois Tool has been named individually, as a successor in interest to the welding companies it later acquired, or both.  

The policies that had been issued by the various insurers to Illinois Tool included a provision requiring the insurers to defend Illinois Tool in any suit brought against it for bodily injury even if the allegations of the suit were false or groundless. On appeal, the insurers did not dispute whether the injuries alleged in the underlying welding cases would be the type covered by their particular policies. Instead, the insurers argued that they were not liable because the final policy they issued expired in 1987 and Illinois Tool did not enter the welding product market until 1993 and therefore could not possibly be liable for the injuries alleged. 

The Appellate Court rejected the insurers' arguments. The court first reiterated the general rule that the duty to defend hinges on the whether the allegations in the underlying complaint, if true, would potentially bring the claims within coverage and not whether Illinois Tool was likely to be found liable. The court noted that it was required to consider false and groundless allegations in its analysis. In addressing the duty to defend issue on appeal, the court divided the underlying complaints into groups based on whether they contained allegations of: (1) direct liability with exposure dates during a policy period; (2) direct liability with unstated injury or exposure dates; (3) pure successor-in-interest liability claims; and (4) a combination of direct liability and successor-in-interest claims.

The first category of complaints the court addressed was the group in which the underlying plaintiff alleged exposure to an Illinois Tool product during at least some point within a relevant policy's period. The court found the duty to defend applicable in this set of cases because the unequivocal allegations were that Illinois Tool, itself, made or distributed harmful materials during the policy periods that caused the underlying plaintiffs' injuries. The court explained that it was not relevant, for the purposes of determining the duty to defend, that Illinois Tool undoubtedly did not make or distribute these harmful materials. In so holding, the court highlighted the distinction between the duty to defend and the duty to indemnify and observed that the threshold required to trigger a duty to defend was minimal and that it was required to consider false and groundless allegations. As a result, the court determined that the insurers whose policies were triggered had a duty to defend Illinois Tool for these types of complaints.

The second category of complaints the court considered was those complaints where the underlying plaintiff alleged that exposure to an Illinois Tool product resulted in an injury, but did not set forth when the exposure occurred or when the injury manifested. In ruling that a duty to defend existed in these types of cases, the court rested its decision on Illinois case law holding that an insurer may only refuse to defend its insured if the allegations of the underlying complaint preclude any possibility of coverage. Here, the court determined that the ambiguous or unstated time period must be resolved in favor of a duty to defend. Because the bare allegations of the underlying complaints leave open the possibility that the plaintiffs' exposure or injury occurred during the policy periods, the court found a duty to defend. The court also rejected the insurers' argument that a pro rata allocation should be applied and certain defenses costs allocated to Illinois Tool for the period of time when Illinois Tool elected to self-insure. 

The third category of cases involved only claims that Illinois Tool was liable as the successor to companies Illinois Tool acquired after the insurers' policy periods. Illinois Tool did not seek defense, however, for cases only alleging successor liability. The court found that position appropriate since the underlying allegations were only targeted at predecessor companies or activities beginning after the insurers' policies. These allegations "pled the insurer out of any duty to defend." 

The fourth category of cases involved complaints that included allegations against Illinois Tool for direct and successor liability. The court held there was a duty to defend because "there are allegations of direct liability . . . and the bare allegations leave open the possibility that the loss could be covered." The fact that these complaints also contained allegations of successor liability for which there would not be a duty to defend did not change this conclusion because, as the court noted, Illinois law requires an insurer to defend an entire complaint even if some of the allegations are not covered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions