{ "id": 1725110, "name": "INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. KATALINA STRINGFIELD et al., Defendants-Appellants", "name_abbreviation": "Insurance v. Stringfield", "decision_date": "1997-09-22", "docket_number": "Nos. 1-96-0344, 1-96-0347 cons.", "first_page": "471", "last_page": "478", "citations": [ { "type": "official", "cite": "292 Ill. App. 3d 471" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "614 N.E.2d 1205", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1209", "parenthetical": "in determining whether an ambiguity exists in an insurance contract, the court should consider the subject matter of the contract, the facts surrounding its execution, the situation of the parties and the predominate purpose of the contract, which is to indemnify the insured" } ], "opinion_index": 0 }, { "cite": "155 Ill. 2d 329", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810115 ], "year": 1993, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0329-01" ] }, { "cite": "652 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "1238" }, { "page": "1238" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258693 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "888-89" }, { "page": "889" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0882-01" ] }, { "cite": "312 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "250" } ], "opinion_index": 0 }, { "cite": "57 Ill. 2d 330", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405907 ], "year": 1974, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0330-01" ] }, { "cite": "666 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 725", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150210 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0725-01" ] }, { "cite": "655 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "166 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198897 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-2d/166/0520-01" ] }, { "cite": "160 Misc. 2d 1056", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 921093 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/misc2d/160/1056-01" ] }, { "cite": "163 Misc. 2d 809", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 927955 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/misc2d/163/0809-01" ] }, { "cite": "595 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "413 Mass. 90", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3901443 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/mass/413/0090-01" ] }, { "cite": "340 Md. 503", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2031221 ], "weight": 10, "year": 1995, "pin_cites": [ { "page": "511" }, { "page": "620" }, { "page": "512" }, { "page": "621" }, { "page": "511" }, { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/md/340/0503-01" ] }, { "cite": "674 A.2d 975", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1996, "opinion_index": 0 }, { "cite": "140 N.H. 780", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 2290771 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nh/140/0780-01" ] }, { "cite": "942 F. Supp. 949", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7655145 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/f-supp/942/0949-01" ] }, { "cite": "233 A.D.2d 363", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 30798 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ad2d/233/0363-01" ] }, { "cite": "234 A.D.2d 497", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 35228 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ad2d/234/0497-01" ] }, { "cite": "558 N.W.2d 683", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11893038 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/wis-2d/207/0578-01" ] }, { "cite": "207 Wis. 2d 576", "category": "reporters:state", "reporter": "Wis. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "976 F.2d 1037", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11291771 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1043" } ], "opinion_index": 0, "case_paths": [ "/f2d/976/1037-01" ] }, { "cite": "620 N.E.2d 355", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777559 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-2d/156/0179-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "108-09" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "656 N.E.2d 787", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 866", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906768 ], "year": 1995, "pin_cites": [ { "page": "869" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0866-01" ] }, { "cite": "662 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "169 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909164 ], "year": 1996, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0325-01" ] } ], "analysis": { "cardinality": 828, "char_count": 15590, "ocr_confidence": 0.766, "pagerank": { "raw": 1.6238381610028108e-07, "percentile": 0.6877821834400384 }, "sha256": "6b8ce4e1e40d0e21d0ceb54659bdea1eabd80c8f9df6579cb0fc00b96ebe61ba", "simhash": "1:ae6e3b9e34eceeea", "word_count": 2437 }, "last_updated": "2023-07-14T14:39:42.526448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. KATALINA STRINGFIELD et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE GALLAGHER\ndelivered the opinion of the court:\nThis consolidated appeal raises an issue of first impression in Illinois: whether the standard pollution exclusion found in general liability policies precludes coverage for personal injuries arising out of a minor\u2019s ingestion of lead paint and plaster chips inside his family\u2019s apartment.\nThe undisputed facts follow. Defendant Lawrence Willis, when he was two years old, lived with his mother, defendant Gloria Willis, in an apartment located at 8141 South Kingston in Chicago, Illinois (the premises). The apartment is the subject of a trust whereby defendant American National Bank & Trust Company (the Bank) is the legal owner of the premises and defendant Katalina Stringfield is the beneficial owner. Plaintiff sold Stringfield a general liability insuranee policy covering the premises. The policy was in force from October 2, 1990, through October 2, 1992. Lawrence Willis and his family were tenants on the premises from approximately June 24, 1989, to June 24, 1991.\nOn March 10, 1994, Gloria Willis filed a lawsuit on behalf of her son against several entities, including Stringfield and the Bank. The complaint alleged that Lawrence Willis sustained lead poisoning due to his consumption of lead-based paint and plaster that had chipped, flaked, broken and fallen away from various exposed surfaces of the premises.\nOn June 17, 1994, plaintiff brought the present action, seeking a declaratory judgment that it had no duty to defend or indemnify Stringfield in Gloria Willis\u2019 action against her. Plaintiff included as defendants Stringfield, the Bank, Lawrence Willis and his mother Gloria Willis, all of whom were parties in the original lawsuit filed by Gloria Willis. Plaintiff alleged, among other things, in an amended complaint filed on March 30, 1995, that insurance coverage was precluded by the pollution exclusion provision contained in the insurance policy issued to Stringfield. That provision states, in pertinent part, that the insurance did not apply:\n\"(1) to bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants:\n(a) at or from premises owned, rented or occupied by the name insured!.]\u201d\nThe policy defines \"pollutants\u201d as \"any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.\u201d\nOn October 4, 1995, plaintiff filed its motion for summary judgment, which was granted by the trial court on December 19, 1995. On January 17, 1996, Gloria and Lawrence Willis filed their notice of appeal; on January 18, 1996, Stringfield and the Bank filed their notice of appeal. The appeals were subsequently consolidated. Our review of the trial court\u2019s summary judgment ruling, because it involves an issue of law, is de novo. See, e.g., Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333, 662 N.E.2d 397 (1996).\nIn Illinois, when an insurer relies upon an exclusionary clause in an insurance policy to deny coverage, the applicability of the clause must be clear and free from doubt because any doubts as to coverage will be resolved in favor of the insured. Economy Preferred Insurance Co. v. Grandadam, 275 Ill. App. 3d 866, 869, 656 N.E.2d 787 (1995). \"If the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning. [Citation.] However, if the words in the policy are susceptible to more than one reasonable interpretation, they are ambiguous [citation] and will be construed in favor of the insured ***.\u201d (Emphasis omitted.) Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108-09, 607 N.E.2d 1204 (1992). The determination of whether certain language is ambiguous rests upon whether it is susceptible to more than one reasonable interpretation. Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179, 620 N.E.2d 355 (1993).\nWe start our analysis by looking at the pivotal term \"pollutant.\u201d As noted previously, the policy defines \"pollutant\u201d as an \"irritant\u201d or \"contaminant.\u201d These terms were examined by the seventh circuit in Pipefitters Welfare Educational Fund v. Westchester Fire Insurance Co., 976 F.2d 1037 (7th Cir. 1992). There, the court cogently stated:\n\"The terms \u2019irritant\u2019 and \u2019contaminant,\u2019 when viewed in isolation, are virtually boundless, for 'there is virtually no substance or chemical in existence that would not irritate or damage some person or property.\u2019 [Citation.] Without some limiting principle, the pollution exclusion clause would extend far beyond its intended scope, and lead to some absurd results.\u201d Pipefitters, 976 F.2d at 1043.\nIt is with the recognition of this concept that we undertake our analysis of the present case. We will not undertake to view the terms in isolation, but in the context of the facts of the present case. In other words, we need to determine whether the lead-based paint, under the circumstances of this case, is a \"contaminant\u201d or \"irritant.\u201d As there is nothing before us to indicate that lead \"irritates\u201d or that it is generally considered to be an \"irritant,\u201d our focus will be on the word \"contaminant.\u201d\nCourts in other jurisdictions, under varying analyses, have found that the standard pollution exclusion language at issue here does not preclude coverage for injuries arising out of a minor child\u2019s ingestion of lead-based paint. See, e.g., Vance v. Sukup, 207 Wis. 2d 576, 558 N.W.2d 683 (1996); Cepeda v. Varveris, 234 A.D.2d 497, 651 N.Y.S.2d 185 (1996); GA Insurance Co. v. Naimberg Realty Associates, 233 A.D.2d 363, 650 N.Y.S.2d 246 (1996); Lefrak Organization, Inc. v. Chubb Custom Insurance Co., 942 F. Supp. 949 (S.D.N.Y. 1996); Weaver v. Royal Insurance Co., 140 N.H. 780, 674 A.2d 975 (1996); Sullins v. Allstate Insurance Co., 340 Md. 503, 667 A.2d 617 (1995); Atlantic Mutual Insurance Co. v. McFadden, 413 Mass. 90, 595 N.E.2d 762 (1992); General Accident Insurance Co. v. Idbar Realty Corp., 163 Misc. 2d 809, 622 N.Y.S.2d 417 (N.Y. Sup. Ct. 1994); Generali-U.S. Branch v. Caribe Realty Corp., 160 Misc. 2d 1056, 612 N.Y.S.2d 296 (N.Y. Sup. Ct. 1994).\nIn Sullins v. Allstate Insurance Co., 340 Md. 503, 667 A.2d 617 (1995), the court first determined that, based upon its definition in the dictionary, a reasonably prudent layperson may consider lead to be a \"contaminant.\u201d Sullins, 340 Md. at 511, 667 A.2d at 620. The court then went on, however, to discuss the insurance industry\u2019s intention in creating the pollution exclusion, noting that the intention was to exclude only environmental pollution. Thus, the court determined that the language was ambiguous because a reasonable interpretation of the term \"pollutant\u201d would exclude lead-based paint, which is a product \"used legally and intentionally.\u201d Sullins, 340 Md. at 512, 667 A.2d at 621.\nPlaintiff here, citing Lapham-Hickey Steel Corp. v. Protection Mutual Insurance Co., 166 Ill. 2d 520, 655 N.E.2d 842 (1995), correctly notes that Illinois courts should interpret words in an insurance policy according to their plain, ordinary and popular meanings. Thus, plaintiff further contends, this court should not craft a limitation on the scope of the exclusion, as did the court in Sullins when it interpreted the exclusion as applying only to environmental pollution or contamination. Under either analysis, however, we would conclude that an ambiguity exists and the result of our decision would be the same.\nWe do not believe the court in Sullins needed to look beyond the plain, ordinary and popular meaning to recognize that the term \"contaminant\u201d is susceptible to more than one reasonable interpretation and thus ambiguous with respect to whether it encompasses lead-based paint. The Sullins court, in first determining that a reasonably prudent layperson may consider lead to be a \"contaminant,\u201d noted that Webster\u2019s Dictionary defines \"contaminant\u201d as \"something that contaminates\u201d and \"contaminate\u201d as \"to soil, stain, corrupt, or infect by contact or association\u201d or \"make inferior or impure by mixture.\u201d Sullins, 340 Md. at 511, 667 A.2d at 620, quoting Webster\u2019s Third New International Dictionary 491 (1981). With respect to whether such a definition encompasses the lead in lead-based paint, a reasonably prudent layperson could conclude, based upon the definition alone, that it does not. The definition implies that there must be a contemporaneous association between the contaminating substance and the time it corrupts the substance, no matter how toxic, dangerous, or undesirable it might later be determined to be. Thus, the paint could only have been \"contaminated\u201d at the time the lead was added. We do not believe that a reasonably prudent layperson would understand that lead-based paint was contaminated from its time of creation. It was also not later contaminated since there was no subsequent corruption by lead, which caused the paint to become contaminated, such as would occur if lead from pipes corrupted a water supply.\nIn addition to this first definition of \"contaminate\u201d discussed by the Sullins court, a second definition found in Webster\u2019s Dictionary reinforces our reasoning. Webster\u2019s Dictionary additionally defines \"contaminate\u201d as follows: \"2: to render unfit for use by the introduction of unwholesome or undesirable elements .\u201d (Emphasis added and omitted.) Webster\u2019s Third New Int\u00e9rnational Dictionary 491 (1993).\nThus, we conclude that the plain, ordinary, and popular meaning of \"pollutant\u201d leads to the conclusion that a reasonable interpretation is that it does not include the lead that is contained in lead-based paint, nor does it include the lead-based paint that was present on the premises. A common understanding of a pollutant is a substance that \"pollutes\u201d or renders impure a previously unpolluted object, as when chemical wastes leach into a clean water supply. Here the lead did not pollute the paint; it was purposefully incorporated into the paint from the start. The paint was intentionally applied to the premises. At the time, the paint was legal. It was considered neither impure nor unwanted. A literal reading of the term as it is used in the exclusionary clause at issue supports the interpretation favored by the defendants. We hold that, as a matter of law, the standard pollution exclusion found in general liability policies does not preclude coverage for personal injuries arising out of a minor\u2019s ingestion of lead.\nIn McFadden, the Massachusetts Supreme Court came to a similar conclusion using different reasoning. The court there, reading the exclusion as a whole, focused upon the terms \"discharge,\u201d \"dispersal,\u201d \"release\u201d and \"escape\u201d and noted that these are \"terms of art\u201d in environmental law relating to improper disposal or containment of hazardous waste. McFadden, 413 Mass. 90, 595 N.E.2d 762 (1992). Citing McFadden, among other similarly decided cases, this court has previously decided that the pollution exclusion in a commercial landlord\u2019s general liability policy reasonably could be interpreted as applying only to environmental pollution and thus was ambiguous as to whether it applied to tenants\u2019 claims for injuries from carbon monoxide emitted from a building\u2019s faulty furnace. American States Insurance Co. v. Koloms, 281 Ill. App. 3d 725, 666 N.E.2d 699 (1996).\nWe agree with the reasoning of McFadden and Koloms. Thus, even if we disregard for the moment our analysis of the terms at issue under the \"plain, ordinary and popular meaning\u201d test, there is a reasonable interpretation of the pollution exclusion clause other than that it applies to claims for injuries arising out of the ingestion of lead-based paint \u2014 that the clause applies only to claims for injuries arising out of environmental pollution. Thus, the provision is ambiguous and the ambiguity is resolved in favor of the insured.\nPlaintiff urges this court to ignore the Koloms decision and argues that the court there improperly grafted the \"environmental pollution\u201d limitation onto the exclusion, thus ignoring fundamental Illinois coverage doctrines. Plaintiff argues that, by its written terms, which is the only language plaintiff asserts this court should consider, the exclusion is not limited to \"environmental contamination.\u201d We disagree. \"What at first blush might appear unambiguous in the insurance contract might not be such in the particular factual setting in which the contract was issued.\u201d Glidden v. Farmers Automobile Insurance Ass\u2019n, 57 Ill. 2d 330, 336, 312 N.E.2d 247, 250 (1974).\n\"A contract is properly found ambiguous 'when the language used is susceptible to more than one meaning [citation] or is obscure in meaning through indefiniteness of expression [citation].\u2019 [Citation.] If the court determines that the contract is ambiguous, parol evidence may be considered by the trier of fact in determining the parties\u2019 intent. [Citation.] A contract is binding and enforceable only if its material terms are definite and certain. [Citation.]\u201d Meyer v. Marilyn Miglin, Inc., 273 Ill. App. 3d 882, 888-89, 652 N.E.2d 1233, 1238 (1995). Here, we have already determined that at least one of the material terms, \"contaminant,\u201d was not definite or certain. Thus, we believe it appropriate to use the \"provisional approach\u201d here, which views the language of the document from the perspective of the parties at the time of its execution.\nThis court, recognizing the split of authority in Illinois courts on the \"provisional approach,\u201d nevertheless has acknowledged its soundness because \" '[t]he meaning of words cannot be ascertained in a vacuum.\u2019 [Citation.]\u201d Meyer, 273 Ill. App. 3d at 889, 652 N.E.2d at 1238; see also Dungey v. Haines & Britton, Ltd., 155 Ill. 2d 329, 336, 614 N.E.2d 1205, 1209 (1993) (in determining whether an ambiguity exists in an insurance contract, the court should consider the subject matter of the contract, the facts surrounding its execution, the situation of the parties and the predominate purpose of the contract, which is to indemnify the insured).\nWe therefore conclude that the words in the policy here are susceptible to more than one reasonable interpretation; thus, they are ambiguous and will be construed in favor of the insured. The underlying suit does not arise from the discharge, dispersal, release or escape of a \"pollutant.\u201d As such, the pollution exclusion does not preclude coverage under the insurance policy. Our decision is not based solely upon the \"reasonable expectations\u201d doctrine, but also on a reasonable interpretation of the plain, ordinary and popular meanings of the terms in the policy.\nAccordingly, we conclude that the trial court erred in granting plaintiffs motion for summary judgment. This case is reversed and remanded for further proceedings consistent with this decision.\nReversed and remanded.\nCAMPBELL, P.J., and BUCKLEY, J., concur.", "type": "majority", "author": "JUSTICE GALLAGHER" } ], "attorneys": [ "Much, Shelist, Freed, Denenberg, Ament, Bell & Rubenstein, P.C. (Anthony C. Valiulis, Deborah Schmitt Bussert, Penny Brown, and Wendy B. Kahn, of counsel), and Jenner & Block (John Mathias, of counsel), both of Chicago, for appellants.", "Cutler & Hull, of Chicago (David P. Cutler, of counsel), and Bingham, Summers, Welsh & Spilman, of Indianapolis, Indiana (Dennis F. Cantrell and James M. Hinshaw, of counsel), for appellee." ], "corrections": "", "head_matter": "INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. KATALINA STRINGFIELD et al., Defendants-Appellants.\nFirst District (1st Division)\nNos. 1 \u2014 96\u20140344, 1 \u2014 96\u20140347 cons.\nOpinion filed September 22, 1997.\nRehearing denied October 28, 1997.\nMuch, Shelist, Freed, Denenberg, Ament, Bell & Rubenstein, P.C. (Anthony C. Valiulis, Deborah Schmitt Bussert, Penny Brown, and Wendy B. Kahn, of counsel), and Jenner & Block (John Mathias, of counsel), both of Chicago, for appellants.\nCutler & Hull, of Chicago (David P. Cutler, of counsel), and Bingham, Summers, Welsh & Spilman, of Indianapolis, Indiana (Dennis F. Cantrell and James M. Hinshaw, of counsel), for appellee." }, "file_name": "0471-01", "first_page_order": 489, "last_page_order": 496 }