{ "id": 1260443, "name": "FRUIT OF THE LOOM, INC., Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY et al., Defendants-Appellees", "name_abbreviation": "Fruit of Loom, Inc. v. Travelers Indemnity Co.", "decision_date": "1996-09-17", "docket_number": "No. 1-95-1869", "first_page": "485", "last_page": "500", "citations": [ { "type": "official", "cite": "284 Ill. App. 3d 485" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "15 F.3d 699", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1527466 ], "year": 1994, "pin_cites": [ { "parenthetical": "applying Wisconsin law" } ], "opinion_index": 0, "case_paths": [ "/f3d/15/0699-01" ] }, { "cite": "620 N.E.2d 1073", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "year": 1993, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] }, { "cite": "883 F.2d 1092", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10535601 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/f2d/883/1092-01" ] }, { "cite": "722 F. Supp. 814", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7395885 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/f-supp/722/0814-01" ] }, { "cite": "414 A.2d 220", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11288445, 11288471 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "228" }, { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/a2d/414/0220-01", "/a2d/414/0220-02" ] }, { "cite": "648 N.E.2d 1272", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1276", "parenthetical": "remanding for a determination of what portion of \"pollution damage resulted from\" ordinary operations (excluded), and what portion was caused by sudden and accidental releases (covered)" } ], "opinion_index": 0 }, { "cite": "420 Mass. 196", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 826203 ], "year": 1995, "pin_cites": [ { "page": "203", "parenthetical": "remanding for a determination of what portion of \"pollution damage resulted from\" ordinary operations (excluded), and what portion was caused by sudden and accidental releases (covered)" } ], "opinion_index": 0, "case_paths": [ "/mass/420/0196-01" ] }, { "cite": "938 F.2d 1423", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10534110 ], "year": 1991, "pin_cites": [ { "page": "1429", "parenthetical": "rejecting insured's contention that some pollution was due to accidents because a company that \"purposefully and regularly [has] been carrying on operations involving continual pollution\" is not entitled to policy coverage" } ], "opinion_index": 0, "case_paths": [ "/f2d/938/1423-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "OMC" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "120-25", "parenthetical": "OMC" }, { "page": "123-24" }, { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "289 N.E.2d 418", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "52 Ill. 2d 587", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393131 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0587-01" ] }, { "cite": "319 N.E.2d 749", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "59 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958660 ], "year": 1974, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0284-01" ] }, { "cite": "457 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "386" }, { "page": "387" }, { "page": "387" }, { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "486 N.E.2d 280", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 680", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499508 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "686" }, { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0680-01" ] }, { "cite": "665 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 728", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75259 ], "year": 1996, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0728-01" ] }, { "cite": "649 N.E.2d 946", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 898", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249081 ], "year": 1995, "pin_cites": [ { "page": "904" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0898-01" ] }, { "cite": "442 N.E.2d 245", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "92 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3098596 ], "year": 1982, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0388-01" ] }, { "cite": "582 N.E.2d 1257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 1007", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793907 ], "year": 1991, "pin_cites": [ { "page": "1010" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/1007-01" ] }, { "cite": "621 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "250 Ill. App. 3d 563", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2921388 ], "year": 1993, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0563-01" ] }, { "cite": "651 N.E.2d 723", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 1022", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252046 ], "year": 1995, "pin_cites": [ { "page": "1025" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/1022-01" ] }, { "cite": "615 N.E.2d 858", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "245 Ill. App. 3d 933", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5385630 ], "year": 1993, "pin_cites": [ { "page": "935-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0933-01" ] }, { "cite": "655 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "Lapham-Hickey" } ], "opinion_index": 0 }, { "cite": "166 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198897 ], "weight": 3, "year": 1995, "pin_cites": [ { "parenthetical": "Lapham-Hickey" }, { "page": "530" }, { "page": "532-33" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0520-01" ] }, { "cite": "627 N.E.2d 173", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 686", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2978445 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0686-01" ] } ], "analysis": { "cardinality": 1449, "char_count": 36353, "ocr_confidence": 0.763, "pagerank": { "raw": 1.1560622338757783e-07, "percentile": 0.5829361094025173 }, "sha256": "09007d59228ed91ab1a5a1fadbf98abc9881e622f71c3e622031b4b16acbd89f", "simhash": "1:4b660fecad1714c7", "word_count": 5670 }, "last_updated": "2023-07-14T14:51:55.867701+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRUIT OF THE LOOM, INC., Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE HARTMAN\ndelivered the opinion of the court:\nThis appeal concerns environmental pollution at a plant Fruit of the Loom, Inc. (FOTL), formerly owned in Bridgeport, Connecticut. FOTL sought a declaratory judgment against defendants Travelers Indemnity Company (Travelers) and Transportation Insurance Company (Transportation) for failing to defend it in connection with the subject pollution. Travelers and Transportation filed answers and affirmative defenses. Travelers also filed a counterclaim seeking a declaration that it had no duty to defend or indemnify FOTL.\nFollowing cross-motions for summary judgment between Travelers and FOTL, the circuit court initially granted partial summary judgment for FOTL but, upon motion for reconsideration, vacated its earlier order and granted partial summary judgment for Travelers instead. Subsequently, the court granted summary judgment for Transportation as well. FOTL appeals.\nThe issues presented include whether (1) a \"suit\u201d was filed giving rise to the insurers\u2019 duties to defend; (2) defendants are estopped from raising noncoverage as a defense where the underlying action was settled before either defendant filed a declaratory judgment action; (3) defendants\u2019 \"intentional damage\u201d exclusions bar coverage; (4) FOTL breached its duty to notify; (5) defendants\u2019 \"pollution exclusions\u201d bar coverage; and (6) FOTL waived its extracontractual claims by not raising them on appeal. We need address only issue one, under point I of this opinion, and issue five, under point II of this opinion, for disposition of this appeal.\nFrom the mid-1950s to the late 1970s FOTL, through a former subsidiary, Universal Manufacturing Corporation (Universal), operated a leased facility in Bridgeport (Bridgeport plant) to manufacture electrical capacitors. Universal used low-chlorinated liquid polychlorinated biphenyls (PCBs) to impregnate the capacitors. One such agent, Aroclor 1242, was used until approximately 1972; another, Aroclor 1016, was used until 1978. PCBs, dielectric compounds that increase the efficiency of capacitors, are essentially insoluble in water. The Bridgeport plant initially used 55 gallons of PCBs each week to impregnate its capacitors, which rose to approximately 2,000 gallons per week prior to its discontinued use of PCBs in February 1978.\nUniversal purchased the PCBs from Monsanto Company (Monsanto) which, as early as 1963, placed warning labels on its Aroclor products concerning toxicity, and distributed product bulletins informing customers of toxicity and safe handling of the product. In the late 1960s, Monsanto discovered PCBs\u2019 harmful effects on the environment of which it informed Universal in March 1969. Monsanto specifically advised Universal to keep all chemicals well contained and, subsequently, to exercise the highest degree of control in its storage of PCB products. In May of 1970, Monsanto began to label Aroclor 1242 with a caution stating \"[ejxtreme care should be taken to prevent any entry into the environment through spills, leakage, use, disposal, vaporization or otherwise.\u201d Aroclor 1016 was similarly labeled. Monsanto\u2019s warnings about the dangers of PCBs also were placed on its shipping documents and invoices. In February of 1970, however, Monsanto notified Universal that low-chlorinated PCBs (less than 54%) \"have not been found in the environment and appear to present no potential problem to the environment.\u201d Aroclor 1016 contained 42% chlorine. In July of 1971, Monsanto sent a product bulletin to Universal, urging that \"every care should be taken by users of PCB-containing products to prevent entry into the environment.\u201d The bulletin proposed nine guidelines for users of PCBs to follow.\nThe Bridgeport plant used large amounts of lower-chlorinated PCBs to impregnate the capacitors, about 1 million pounds each year. Some of these PCBs escaped from the capacitor impregnation room through the wood and steel flooring, down into the underlying oil reclamation room, where it leached into the concrete slab beneath the plant and leached through the concrete into the soil and groundwater beneath the oil reclamation room. The \"source point\u201d for this contamination was the capacitor impregnation area at the Bridgeport plant. It was an ongoing process.\nA Universal foreman, Robert Delvy, testified that PCB drippage occurred all the time; it was an ongoing problem to keep certain areas clean. He later testified that the drippage occurred occasionally and that the drippage was always cleaned up because \"it was slippery and somebody could fall.\u201d Universal used chipboard to absorb the oil and \"spent tons of money trying to keep the floor in reasonably good condition.\u201d Some drippage soaked through a protective floor to the underlying wood floor and into the basement area. Delvy stated that during the early 1980s, Universal made several efforts to clean up the PCB contamination and that material from years before was contaminated, including wood, walls and floors.\nUniversal had stored PCB drums in its plant parking lot at one time; it excavated most of the parking lot in an effort to clean up PCB contamination. In the past, Universal poured PCBs into the sewer drains. Delvy \"pumped probably 3[00] or 400 gallons right out an exhaust port of a vacuum pump out onto the driveway and down the street and [it] ran into sewer drains and [it] ran into the railroad viaducts on more than one occasion.\u201d Delvy poured PCBs into the external drains in the plant; he and \"other people\u201d did this as a practice for a time when he was young until he was stopped. In the 1960s, the practice of pouring PCBs into the sewer was discontinued. Delvy did not know whether the drippage of PCBs was causing property damage.\nDespite Universal\u2019s precautionary measures, pipe leaks and overflows continually occurred in the impregnation area, for example, when \"somebody forgot to put a clamp on a chamber door\u201d or when a \"bottom clamp was left open.\u201d When significant spills occurred, the employees used \"speedy dry\u201d; when lesser amounts spilled on the floor, the chipboard was \"put there to soak it up.\u201d Employees often got PCB oil on their shoes and tracked the oil throughout the plant, which was \"not specifically\u201d cleaned up.\nAlthough one Monsanto employee reported that the Bridgeport plant was very clean, other Monsanto employees were concerned about the spillage at the plant. A Monsanto report indicated that Universal was losing about \"6/2 lbs. per week out of vent lines.\u201d The report concluded that Universal was losing approximately one \"tank car of Aroclor per year.\u201d\nThe Bridgeport plant was inspected several times prior to 1986. In 1976, the Connecticut Department of Environmental Protection (DEP) and the Federal Environmental Protection Agency (EPA) inspected the Bridgeport plant. They issued an abatement order which stated that Universal is \"maintaining a condition which reasonably can be expected to create a source of pollution to the waters of the state.\u201d The order did not allege any contamination of the building, soil or groundwater, but ordered Universal to investigate all sources of PCBs associated with the manufacturing of capacitors and to institute any necessary procedures or modifications to ensure no contamination by PCBs. Universal was required to submit a report detailing the use and disposal of PCBs.\nA 1981 EPA inspection report cited Universal for several violations including improper disposal and storage of PCBs and labeling and recordkeeping of PCB containers.\nOn November 17, 1982, DEP inspected the Bridgeport plant in order to verify the findings by EPA one year earlier. In its report, DEP noted a \"4\u2019 x 15\u2019 spill next to the flood tank,\u201d as well as \"numerous spills throughout the processing section of the facility.\u201d DEP sampled the spills to determine the presence of PCB. The report noted the \"spillage might be DOP,\u201d a non-PCB fluid. DEP also cited Universal for failing to keep proper dating and recordkeeping of PCBs. The report also noted another extensive spill of waste oil but indicated that the oil was DOP.\nOn February 1, 1983, DEP conducted another inspection of the facility. In August of 1983, EPA sent Universal a notice of noncompliance, relating to the 1982 and 1983 inspections. The notice of noncompliance stated that Universal had improperly stored PCB \"drums in the basement of your facility where the masonry walls had small cracks and the floor had an opening which may permit spilled PCB fluid to flow from the storage area.\u201d DEP\u2019s report of 1982 noted that it concurred in the findings concerning the basement area but the inspectors were unable to find an \"opening\u201d noted in the 1981 report.\nIn 1986, FOTL sold Universal and its interest in the Bridgeport plant to MagneTek. A Connecticut statute known as the \"Transfer Act\u201d required a seller of corporate realty to certify to both DEP and the buyer that either (1) there is no contamination on site, or (2) one of the parties to the sale agrees to be responsible for any clean up of the site. On January 29, 1986, FOTL certified to DEP that FOTL would remain responsible for the economic consequences of any remedial action. The certification stated that the Bridgeport plant \"utilized PCB until 1978\u201d and that, despite \"prior cleanup efforts, residual PCB contamination from pre-1978 activities has recently been discovered.\u201d FOTL also certified that it would remove any hazardous waste at the Bridgeport plant \"in accordance with procedures and a time schedule approved by the Commissioner of Environmental Protection pursuant to an order, stipulated judgment, or consent agreement.\u201d\nIn the spring of 1986, Universal retained Memphis Environmental Center (Memphis) as environmental manager at its Bridgeport plant. Memphis became responsible for managing all issues concerning PCB contamination. Memphis advised DEP of remedial plans at the Bridgeport plant in the summer of 1986, which remedial measures were implemented in order to \"minimize employee exposure to surface and airborne PCB contamination.\u201d On November 19, 1986, FOTL submitted a report to DEP \"summarizing the results of in-plant and soil and groundwater data collection, and recommend[ed] a phased approach to remediation at Universal.\u201d\nOn September 4, 1986, DEP conducted an inspection, pursuant to FOTL\u2019s certification of transfer, and discovered PCB contamination at the Bridgeport plant. The inspection, according to a later 1986 DEP letter to Universal from Scott Deshefy, DEP\u2019s PCB coordinator, a PCB investigation \"was conducted as an extension of an investigation, voluntarily initiated by Universal Manufacturing Corporation, to determine the extent of PCB contamination resulting from past manufacturing of small, low-voltage capacitors impregnated with PCBs.\u201d\nFOTL\u2019s director of insurance, Burgess D. Ridge, received a copy of the 1986 DEP letter on March 17, 1987. Ridge concluded that there was a claim under the terms of its insurance policies and reported the letter to Travelers and Transportation on March 19, 1987. Ridge did not believe that Farley, Universal\u2019s parent, was entitled to a defense from the insurers until \"it was established that there was a property damage claim that required defense.\u201d Ridge did not think that a property damage claim existed in the fall of 1985.\nOn April 22, 1987, Travelers acknowledged receipt of Ridge\u2019s letter of March 19, 1987, notifying Travelers of DEP\u2019s letter. On July 2, 1987, Travelers sent Ridge a questionnaire in order to determine whether the insurance policies issued afforded coverage. The Travelers\u2019 letter noted, among other things:\n\"Please be advised that Comprehensive General Liability insurance responds to liability arising out of an 'occurrence\u2019 resulting in 'bodily injury\u2019 or 'property damage\u2019 during the policy periods. This type of policy may also contain language excluding coverage for damages arising out of any emission *** of any liquid *** or pollutant that is either expected or intended from the standpoint of the insured ***.\u201d\nBoth Travelers\u2019 letters reserved all rights and provided that neither the acknowledgement nor any investigation \"shall be construed as a waiver of any of the rights and defenses available to The Travelers.\u201d\nOn June 21, 1988, FOTL negotiated a consent order with DEP, requiring FOTL to (1) continue investigating PCB contamination resulting from past manufacturing practices of Universal; (2) minimize any threat to human health and/or the environment; and (3) obtain discharge permits as necessary for any \"discharge to the waters of the State resulting from implementation of remedial measures.\u201d The consent order established a three-phase schedule for remediation of the site and concluded that failure to comply subjects FOTL \"to penalties under Section 22a \u2014 438, 22a \u2014 469, and injunction under Section 22a \u2014 435 of the Connecticut General Statutes.\u201d\nA soil removal component report prepared for Universal in 1993 stated that \"5,432 tons of contaminated materials were removed from the Site as a result of completing the soil removal component of the final phase of remediation at the Site. It is estimated that approximately 17,000 kilograms (or 37,478 pounds) of PCBs were removed from these materials.\u201d\nFOTL\u2019s predecessors in interest purchased primary comprehensive general liability insurance policies from Travelers from January 1, 1965, to October 31,1978, and from Transportation from November 1, 1978, to January 1, 1986.\nThe Travelers\u2019 policies from 1965 to September 30, 1971, did not contain a pollution exclusion provision. The Travelers\u2019 policies from October 1, 1971, to October 31, 1978, excluded coverage under the following circumstances:\n\"(a) if such emission, discharge, seepage, release or escape is either expected or intended from the standpoint of any insured or any person or organization for whose acts or omissions any insured is liable, or\n(b) resulting from or contributed to by any condition in violation of or non-compliance with any governmental rule, regulation or law applicable thereto ***.\u201d\nThe Travelers\u2019 policies from January 1, 1965, to September 30, 1973, contain the following \"intentional damage\u201d exclusion:\n\"Exclusions. Part I of this agreement does not apply:\n* * *\n(d) to bodily injury, injury arising out of discrimination, advertising injury or property damage caused intentionally by or at the direction of the Insured unless committed for the purpose of protecting persons or property ***.\u201d \u2022\nThe Travelers\u2019 policies issued after 1973 amended the above \"intentional damage\u201d exclusion to create the following \"expected or intended\u201d exclusion:\n\"Exclusions. Part I of this agreement does not apply:\n* * *\n(d) to bodily injury, injury arising out of discrimination, advertising injury or property damage which was either expected or intended from the standpoint of the insured ***.\u201d\nTransportation\u2019s policies contain the following pollution exclusion provisions:\n\"Exclusions. Part I of this policy does not apply:\n* * *\n(i) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.\u201d\nFOTL initially filed a complaint for a judicial declaration that Transportation and Travelers were liable for all costs incurred in connection with pollution conditions at the Bridgeport plant. FOTL\u2019s complaint also contained counts for breach of the covenant of good faith, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1994)), and violation of the Illinois Insurance Code (215 ILCS 5/1 et seq. (West 1994)). Thereafter, FOTL filed an amended complaint, to which Travelers and Transportation filed answers and asserted affirmative defenses. Travelers also filed a counterclaim against FOTL, seeking a declaration that Travelers did not have a duty to defend or indemnify FOTL. FOTL subsequently filed a motion for partial summary judgment on the duty to defend against Travelers and sought to bar Travelers from asserting several affirmative defenses.\nOn January 11, 1993, the circuit court granted FOTL\u2019s motion for partial summary judgment against Travelers for breaching its duty to defend. FOTL moved again for a partial summary judgment against Travelers, seeking to bar Travelers from asserting any remaining defenses. Travelers moved the court to reconsider its January 11,1993, ruling estopping Travelers from asserting certain defenses, relying upon Sears, Roebuck & Co. v. Seneca Insurance Co., 254 Ill. App. 3d 686, 627 N.E.2d 173 (1993). Travelers also cross-moved for summary judgment based upon its \"pollution exclusion\u201d defense. On June 6, 1994, the circuit court granted Travelers\u2019 motion to reconsider, vacated its earlier order and granted Travelers\u2019 cross-motion for partial summary judgment.\nFOTL thereafter moved the circuit court to certify two questions for interlocutory appeal. Travelers again moved for summary judgment, seeking dismissal of FOTL\u2019s entire action based upon its \"expected or intended\u201d and late notice defenses. Transportation also moved for summary judgment based upon its \"pollution exclusion.\u201d FOTL cross-moved against both defendants. Following a hearing, the circuit court granted Travelers\u2019 and Transportation\u2019s motions for summary judgment and denied all plaintiffs motions. This appeal followed.\nI\nFOTL initially argues the circuit court erred in ruling as a matter of law that defendants have no duty to defend. Travelers and Transportation maintain that Lapham-Hickey Steel Corp. v. Protection Mutual Insurance Co., 166 Ill. 2d 520, 655 N.E.2d 842 (1995) (Lapham-Hickey), governs the disposition of this case.\nA\nA motion for summary judgment will be granted only when the pleadings, depositions, admissions, and affidavits on file, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005 (West 1994). A court may draw inferences from undisputed facts but will not grant summary judgment unless those facts are susceptible of only a single inference. Bellerive v. Hilton Hotels Corp., 245 Ill. App. 3d 933, 935-36, 615 N.E.2d 858 (1993). This court reviews summary judgment orders de novo; accordingly, we examine all the evidentiary material on file at the time of the entry of the orders appealed from in the light most favorable to the nonmovant. Trevino v. Flash Cab Co., 272 Ill. App. 3d 1022, 1025, 651 N.E.2d 723 (1995).\nInsurance contracts are subject to the same rules of construction as other types of contracts. Dunlap v. Illinois Founders Insurance Co., 250 Ill. App. 3d 563, 568, 621 N.E.2d 102 (1993). In construing a contract, the primary objective is to effectuate the intent of the parties. Dunlap, 250 111. App. 3d at 568. \"Intent may be ascertained from the circumstances surrounding the issuance of the policy, including the situation of the parties and the purpose for which the policy was obtained.\u201d Dash Messenger Service, Inc. v. Hartford Insurance Co., 221 Ill. App. 3d 1007, 1010, 582 N.E.2d 1257 (1991).\nAn insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the underlying complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy\u2019s coverage. Conway v. Country Casualty Insurance Co., 92 Ill. 2d 388, 393, 442 N.E.2d 245 (1982). The duty to defend arises even if only one of the theories of recovery is within the potential coverage of the policy. Shell Oil Co. v. A C & S, Inc., 271 Ill. App. 3d 898, 904, 649 N.E.2d 946 (1995).\nIn Lapham-Hickey, the supreme court determined \"when a 'suit\u2019 exists in an environmental context.\u201d Lapham-Hickey, 166 Ill. 2d at 530. The Lapham-Hickey court noted that \"the word 'suit\u2019 refers to a proceeding in a court of law [citations]\u201d and observed, in part, as follows:\n\"The definition of the word 'suit\u2019 as requiring an action in a court of law is further supported by analyzing the connection between the filing of a complaint and the duty to defend. Whether an insurer\u2019s duty to defend has arisen is determined by looking to the allegations in the underlying complaint and comparing these allegations to the policy provisions. [Citation.] If the facts alleged in the underlying complaint fall within or even potentially within policy coverage, the insurer has a duty to defend its insured against the complaint. [Citation.] Thus, the duty to defend extends only to suits and not to allegations, accusations or claims which have not been embodied within the context of a complaint. In the instant case, a complaint alleging liability for property damage has never been filed against Lapham-Hickey. Without a complaint, there is no 'suit.\u2019 And without a 'suit,\u2019 *** [insurer\u2019s] duty to defend Lapham-Hickey is not triggered.\nNeither the initial letter from the EPA, the draft consent order nor the 'no-action\u2019 letter initiated a suit. None were filed in a court of law and none accomplished service of process upon Lapham-Hickey. Rather, the draft consent order and ultimately the 'no-action\u2019 letter were mechanisms used to encourage LaphamHickey to voluntarily investigate the contamination at the facility. Though the tone of these documents may have been confrontational, these documents by themselves are not complaints and do not impose liability.\u201d 166 Ill. 2d at 532-33.\nIn the case sub judice, defendants\u2019 duties to defend similarly apply to \"suits\u201d under the explicit language of both policies, \"to defend any suit alleging such injury or damage\u201d (Travelers\u2019 policy, coverage A, part 1(a); Transportation\u2019s policy, coverage A, part 1(a)). DEP never filed a complaint in court against FOTL or any of its subsidiaries. The only substantive difference between the present case and Lapham-Hickey is that DEP\u2019s letter expressly stated that it was an enforcement action whereas no enforcement action was initiated in Lapham-Hickey. 166 111. 2d at 525. In the instant case, however, Memphis notified FOTL\u2019s and Farley\u2019s attorneys that DEP\u2019s inspector did \"not favor a Consent Order but preferred a letter from the State to the company indicating a Notice of Violation allowing a timetable for coming into compliance.\u201d Memphis\u2019 letter also indicated that the inspection which eventually brought about the letter was initiated by Universal itself. Further, DEP\u2019s letter describes itself as a \"notice *** issued to formally require affirmation that the aforementioned PCB environmental contamination is completely and expedi[ti]ously removed and disposed in accordance with State and Federal PCB regulations.\u201d DEP\u2019s letter also stated that it was a \"memorandum\u201d and that Universal \"should submit a written certified statement specifically describing the remedial actions to be taken.\u201d\nAs in Lapham-Hickey, DEP\u2019s letter did not initiate a suit, was not filed in a court of law and did not accomplish service of process upon Universal. DEP\u2019s letter, by its very terms, attempted only to encourage Universal to undertake remedial action. Lapham-Hickey, therefore, clearly controls the disposition of this issue.\nDEP\u2019s letter did not initiate a suit and, therefore, did not trigger defendants\u2019 duties to defend.\nB\nFOTL contends that Lapham-Hickey should not be applied retroactively. In Forest Preserve District v. Pacific Indemnity Co., 279 Ill. App. 3d 728, 734, 665 N.E.2d 305 (1996), the court noted that Lapham-Hickey had retroactive application because the supreme court\u2019s opinion in Lapham-Hickey did not state that it was prospective and the \"opinion on its face applies to the litigants in the Lapham-Hickey case.\u201d It must be concluded that Lapham-Hickey is to be given retroactive application.\nC\nFOTL asserts, however, the circuit court\u2019s initial ruling of January 11,1993, that a \"suit\u201d was commenced has become the law of the case because neither insurer appealed.\nA decision on a question of law from which no appeal has been taken becomes the law of the case. Wolfe v. Industrial Comm\u2019n, 138 Ill. App. 3d 680, 686, 486 N.E.2d 280 (1985). Contrariwise, a party cannot complain of an error which does not prejudicially affect it, and one who has obtained by judgment all that has been asked in the circuit court cannot appeal from that judgment. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 386, 457 N.E.2d 9 (1983). It is the judgment and not what else may have been said by the circuit court that is on appeal. Material Service Corp., 98 Ill. 2d at 387. A reviewing court is not bound to accept the reasons given by a circuit court for its judgment, which may be sustained upon any ground warranted, regardless of whether the circuit court relied upon such ground and regardless of whether the reason given by the circuit court was correct. Material Service Corp., 98 Ill. 2d at 387.\nDefendants here correctly observe that they did not need to appeal the lower court\u2019s judgment because no part of it was adverse to them. FOTL counters that Travelers did not receive attorney fees and, therefore, an aspect of the judgment was not in appellee\u2019s favor. Travelers asserts that this court can affirm the circuit court\u2019s order on any ground.\nThe cases relied upon by FOTL (e.g., Wolfe v. Industrial Comm\u2019n, 138 Ill. App. 3d 680, 686, 486 N.E.2d 280 (1985), City of Chicago v. Industrial Comm\u2019n, 59 Ill. 2d 284, 290, 319 N.E.2d 749 (1974), and City of Wilmington v. Industrial Comm\u2019n, 52 Ill. 2d 587, 289 N.E.2d 418 (1972)), involve instances where the party prevailing in the circuit court did not file a cross-appeal but nevertheless requested the reviewing court to reverse a part of the judgment. In the present case, Travelers does not seek to reverse any part of the circuit court\u2019s judgment. Travelers\u2019 counterclaim against FOTL requested attorney fees and costs. The circuit court granted Travelers and Transportation costs in its final order. No mention was made of attorney fees in either the final order or the court\u2019s last proceeding. Unlike the cases relied upon by FOTL, Travelers seeks only to affirm the circuit court\u2019s ruling. True, the circuit court, during the course of its January 1993 proceedings, found that a \"suit\u201d had been filed; however, the January 1993 order was subsequently vacated. Although FOTL accurately notes the circuit court retained its reasoning, that a suit had been filed in subsequent proceedings, nevertheless summary judgment was granted for Travelers and, therefore, there was no reason for Travelers to file a cross-appeal.\nThis court can sustain the circuit court\u2019s judgment upon any ground warranted, regardless of whether the circuit court relied upon such ground and regardless of whether the reason given by the circuit court was correct. Material Service Corp., 98 Ill. 2d at 387. In any event, the decision in Lapham-Hickey controls the disposition of whether a \"suit\u201d was commenced by DEP\u2019s letter.\nIn sum, the issue of whether a \"suit\u201d had been filed did not become the law of the case because defendants did not have to file a cross-appeal where they do not seek to reverse any part of the circuit court\u2019s judgment.\nII\nFOTL contends that defendants\u2019 pollution exclusions do not operate to bar coverage.\nA\nFOTL initially argues that Transportation\u2019s pollution exclusion does not apply because FOTL did not \"expect or intend\u201d any discharge of PCBs into the external environment.\nIn Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 120-25, 607 N.E.2d 1204 (1992) (OMC), the supreme court discussed the identical pollution exclusion contained in Transportation\u2019s policies in the present case. The OMC court determined that the \"sudden and accidental\u201d language of the exclusion retriggers \"coverage for unexpected or unintended releases\u201d and discharges of pollutants. 154 Ill. 2d at 123-24. The OMC court observed that the relevant consideration \"is whether the insured expected and intended to discharge the particular toxic[ant] it is alleged to have discharged and for which it now seeks coverage.\u201d (Emphasis in original.) 154 Ill. 2d at 129. In other words, if FOTL expected the release of PCBs into the environment, the pollution exclusion applies and the loss is not covered.\nIn the present case, the record demonstrates that FOTL regularly expected spills during the manufacturing process. In order to clean up the continually recurring spills and drippage, FOTL used \"speedy dry,\u201d rags, mops and chipboard to absorb the oil. A study of the plant revealed \"surface contamination\u201d of the impregnation chamber, the basement beneath the chamber, the fluid transfer area, and \"possibly the load testing area.\u201d Additionally, the \"wood floors and timbers\u201d beneath the impregnation chamber are \"likely saturated with PCBs.\u201d The concrete floor in the basement similarly received \"significant spillage, and is likely to be contaminated to a considerable depth with PCBs.\u201d This evidence sufficiently demonstrates that FOTL regularly experienced and endeavored to deal with discharges and releases of the PCBs. To claim that such discharges and releases were unexpected is disingenuous.\nFOTL insists that because there is also evidence of accidental spills, they were \"unexpected\u201d and the policies do not bar coverage. Spills which occurred when \"somebody forgot [accidently] to put a clamp on a chamber door\u201d or when \"a bottom clamp [accidently] was left open,\u201d were ordinary and recurring parts of the business, which also must be deemed to have been expected by FOTL in its operations. Compare Lumbermens Mutual Casualty Co. v. Belleville Industries, Inc., 938 F.2d 1423, 1429 (1st Cir. 1991) (rejecting insured\u2019s contention that some pollution was due to accidents because a company that \"purposefully and regularly [has] been carrying on operations involving continual pollution\u201d is not entitled to policy coverage), with Nashua Corp. v. First State Insurance Co., 420 Mass. 196, 203, 648 N.E.2d 1272, 1276 (1995) (remanding for a determination of what portion of \"pollution damage resulted from\u201d ordinary operations (excluded), and what portion was caused by sudden and accidental releases (covered)). Despite evidence here of slight accidental spills, FOTL nevertheless is shown to have expected such accidents in the ordinary course of business and, therefore, remand is not necessary. Transportation\u2019s pollution exclusion bars coverage in the present case.\nB\nFOTL next contends that Travelers\u2019 pollution exclusion does not apply. Travelers asserts that it has no duty to defend or indemnify plaintiff because the pollution exclusion bars coverage for the illegal contamination as well as for the expected and intended discharges of PCBs.\nTravelers\u2019 policies contain a pollution exclusion which bars coverage for property damage arising out of any discharge of any liquid if such discharge results from \"any condition in violation of or noncompliance with any governmental rule, regulation or law applicable thereto.\u201d Travelers\u2019 exclusion bars coverage, then, for any contamination which results from any condition in violation of any governmental law. The DEP\u2019s notice of violation stated that Universal violated several Connecticut statutes through its \"illegal disposal of PCBs.\u201d\nFOTL relies upon Travelers Indemnity Co. v. Dingwell, 414 A.2d 220 (Me. 1980), to establish that the pollution exclusion requires that the illegal conduct must cause the discharge. Dingwell is distinguishable because the complaint there did not \"allege that *** [insured\u2019s] operation has ever been found to violate any state statute or regulation.\u201d 414 A.2d at 228. In Dingwell, it appeared from the complaint that insured\u2019s \"operation conformed to the then existing law.\u201d 414 A.2d at 228. In the present case, DEP\u2019s letter plainly states that Universal violated state statutes. Although FOTL contends that \"disposal\u201d means \"accidentally to discard\u201d and that FOTL had to intend to discharge pollutants, Travelers\u2019 policy merely requires a violation of state statute or regulation. See Travelers Insurance Co. v. Waltham Industrial Laboratories Corp., 722 F. Supp. 814, 828 n.6 (D. Mass. 1988), aff\u2019d in relevant part, 883 F.2d 1092 (1st Cir. 1989). We conclude that Travelers\u2019 pollution exclusion expressly bars coverage for the contamination in the present case.\nC\nFOTL next argues that Travelers\u2019 pollution exclusion does not apply because FOTL did not expect or intend to discharge pollutants. As previously discussed in section A of this part, evidence sufficiently demonstrated that FOTL expected discharges and releases of the PCBs.\nThe pollution exclusion merely requires an expectation of release or escape of pollutants. Although FOTL also focuses on its stringent housekeeping, the evidence sufficiently shows that spills occurred commonly during the ordinary course of business. As a result, Travelers\u2019 pollution exclusion bars coverage in the present case.\nD\nTravelers asserts that since it has no duty to defend under the pollution exclusion provisions of its policies, it has no duty to indemnify because an insurer\u2019s duty to indemnify is narrower than its duty to defend. FOTL maintains the duty to indemnify is separate from the duty to defend.\nIn cases where no duty to defend exists, there is no duty to indemnify since the duty to defend is broader than the duty to indemnify. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 398, 620 N.E.2d 1073 (1993). Because we conclude that Travelers has no duty to defend FOTL, concomitantly it has no duty to indemnify FOTL.\nFor the reasons set forth in this opinion, we affirm the decision of the circuit court granting summary judgment in favor of Travelers Indemnity Company and Transportation Insurance Company.\nAffirmed.\nSCARIANO and DiVITO, JJ., concur.\nUltimately, PCBs were banned by the federal government in 1978.\nOn February 4, 1993, the circuit court entered an amended order which similarly granted FOTL partial summary judgment against Travelers for breaching its duty to defend and barring Travelers from raising its tenth, eleventh, twelfth and twentieth affirmative defenses.\nFOTL does not allege, nor does the record reveal, that any part of the judgment was against Transportation. Transportation could not cross-appeal the circuit court\u2019s judgment, and the circuit court\u2019s ruling that a \"suit\u201d had been initiated did not become the law of the case as against Transportation in any event.\nFOTL contends that other courts have consistently held that the standard pollution exclusion clause does not bar contamination arising from the unexpected and unintended release of materials from containment areas, relying upon Patz v. St. Paul Fire & Marine Insurance Co., 15 F.3d 699 (7th Cir. 1994) (applying Wisconsin law). Patz, however, is distinguishable because the manufacturer in Patz stored barrels of sludge in a pit which it covered. The pit was a \"containing structure.\u201d In Patz, the insured sought to contain the sludge. Unlike Patz, the resulting contamination in the present case did not derive from the insured\u2019s attempts to conceal or contain the waste but arose from spills and drippage inside the plant. No one has suggested that the floor of the plant, unlike the pit in Patz, was a suitable container for PCB oil.", "type": "majority", "author": "PRESIDING JUSTICE HARTMAN" } ], "attorneys": [ "D\u2019Ancona & Pflaum, of Chicago (Michael Quinn and Steven Baron, of counsel), and Anderson, Kill, Olick & Oshinsky, L.L.P., of Washington, D.C. (Michael Nardolilli, Lauren Sobel, and Lisa Barsoomian, of counsel), for appellant.", "Haskell & Perrin, of Chicago (Daniel Caswell and Michael Warnick, of counsel), for appellee Transportation Insurance Company.", "Altheimer & Gray, of Chicago (Jeffrey Kraus and Charles Valente, of counsel), and Coudert Brothers, of New York, New York (Seth Ribner, Theodore Snyder, Julie Mack, and C. Allen Garrett, of counsel), for appellee Travelers Indemnity Company." ], "corrections": "", "head_matter": "FRUIT OF THE LOOM, INC., Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201495\u20141869\nOpinion filed September 17, 1996.\nRehearing denied November 21, 1996.\nD\u2019Ancona & Pflaum, of Chicago (Michael Quinn and Steven Baron, of counsel), and Anderson, Kill, Olick & Oshinsky, L.L.P., of Washington, D.C. (Michael Nardolilli, Lauren Sobel, and Lisa Barsoomian, of counsel), for appellant.\nHaskell & Perrin, of Chicago (Daniel Caswell and Michael Warnick, of counsel), for appellee Transportation Insurance Company.\nAltheimer & Gray, of Chicago (Jeffrey Kraus and Charles Valente, of counsel), and Coudert Brothers, of New York, New York (Seth Ribner, Theodore Snyder, Julie Mack, and C. Allen Garrett, of counsel), for appellee Travelers Indemnity Company." }, "file_name": "0485-01", "first_page_order": 503, "last_page_order": 518 }