{ "id": 261334, "name": "BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT No. 211, Plaintiff-Appellant, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Board of Education v. International Insurance", "decision_date": "1999-03-22", "docket_number": "No. 1-98-0084", "first_page": "597", "last_page": "605", "citations": [ { "type": "official", "cite": "308 Ill. App. 3d 597" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "76 Haw. 277", "category": "reporters:state", "reporter": "Haw.", "case_ids": [ 12260744 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "298" }, { "page": "915" } ], "opinion_index": 0, "case_paths": [ "/haw/76/0277-01" ] }, { "cite": "298 Ill. App. 3d 316", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073566 ], "year": 1998, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0316-01" ] }, { "cite": "268 Ill. App. 3d 598", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381801 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "645-46" }, { "page": "645" }, { "page": "644" }, { "page": "645-46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0598-01" ] }, { "cite": "42 Cal. Rptr. 2d 324", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "897 P.2d 1", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1995, "opinion_index": 0 }, { "cite": "10 Cal. 4th 645", "category": "reporters:state", "reporter": "Cal. 4th", "case_ids": [ 1992355 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/cal-4th/10/0645-01" ] }, { "cite": "257 Cal. Rptr. 292", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1989, "opinion_index": 0 }, { "cite": "770 P.2d 704", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1989, "opinion_index": 0 }, { "cite": "48 Cal. 3d 395", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 4614625 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/cal-3d/48/0395-01" ] }, { "cite": "131 Ill. 2d 428", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569862 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "446-49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0428-01" ] }, { "cite": "144 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592135 ], "weight": 13, "year": 1991, "pin_cites": [ { "page": "69" }, { "page": "69" }, { "page": "69-70" }, { "page": "70" }, { "page": "75" }, { "page": "70" }, { "page": "75" }, { "page": "72" }, { "page": "75" }, { "page": "75-76" }, { "page": "75" }, { "page": "75-76" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0064-01" ] }, { "cite": "118 N.M. 281", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563427 ], "weight": 14, "year": 1994, "pin_cites": [ { "page": "282" }, { "page": "27" }, { "page": "282" }, { "page": "27" }, { "page": "282" }, { "page": "27" }, { "page": "282" }, { "page": "28" }, { "page": "284" }, { "page": "29" }, { "page": "284" }, { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0281-01" ] }, { "cite": "177 Ill. 2d 473", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317117 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "479-80" }, { "page": "479" }, { "page": "479" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0473-01" ] }, { "cite": "183 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209971 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "349" }, { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0342-01" ] } ], "analysis": { "cardinality": 747, "char_count": 18087, "ocr_confidence": 0.778, "pagerank": { "raw": 7.105963348686667e-08, "percentile": 0.4269173608191057 }, "sha256": "9b319bb8bf324b7810718171da89dcedc4c1e18a2086515e8733a7f5122d9096", "simhash": "1:20228473428470f5", "word_count": 2810 }, "last_updated": "2023-07-14T16:54:33.383803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT No. 211, Plaintiff-Appellant, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE O\u2019BRIEN\ndelivered the opinion of the court:\nPlaintiff, the Board of Education of Township High School District No. 211, filed a declaratory judgment action against defendant, International Insurance Company, seeking a determination of coverage under two property insurance policies for asbestos-related property damage in three of plaintiffs high schools. The trial court granted summary judgment for defendant. Plaintiff filed this timely appeal. We reverse and remand.\nDefendant sold plaintiff two property insurance policies that provided coverage from April 1, 1981, to March 31, 1986, for \u201call risks of physical loss or damage\u201d to the five high schools operated by plaintiff. In 1983, plaintiff hired Arcon Associates, an architectural firm, to inspect the schools for the presence of \u201cfriable\u201d asbestos, i.e., asbestos that can be crumbled by hand. Richard Kumnick, an employee of Arcon, discovered friable asbestos in three of the schools. Kumnick opined that the asbestos-containing building materials (ACBMs) were releasing harmful fibers into the air and that ordinary activities such as sweeping and dusting were \u201creentraining,\u201d or making airborne again, previously released fibers.\nKumnick further opined that the Asbestos Abatement Act (105 ILCS 105/1 et seq. (West 1994)) required the removal of the ACBMs. The Asbestos Abatement Act provides for \u201cthe identification, containment or removal of those asbestos materials that constitute a significant health hazard *** to students, school personnel, parents and visitors to such schools.\u201d 105 ILCS 105/2 (West 1994).\nPlaintiff notified Kumnick that it had decided to remove all ACBMs from its schools. According to Kumnick, plaintiff incurred over $2.6 million in asbestos removal and restoration costs between June 1984 and July 1986. To date, plaintiff has incurred about $18 million in asbestos removal and restoration costs.\nPlaintiff made claim upon defendant for coverage under the two property insurance policies. Defendant denied the claim.\nPlaintiff filed this declaratory judgment action against defendant, seeking a declaration that the policies cover the damage resulting from the presence of friable asbestos and toxic asbestos fibers in its schools. The trial court granted summary judgment for defendant, finding that the presence of asbestos in the school buildings did not constitute property damage covered by the policies. Plaintiff filed this timely appeal.\nSummary judgment is appropriate when, viewed in the light most favorable to the nonmoving party, the pleadings, depositions and admissions on file reveal that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349 (1998). The standard of review in cases involving summary judgment is de novo. Ragan, 183 Ill. 2d at 349.\nIn determining whether summary judgment for defendant is proper, the two property insurance policies at issue must be construed. The construction of insurance policies is a matter of law subject to de novo review. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479-80 (1997). The construction of the policies is to give effect to the intent of the parties as expressed in their agreement. American States, 177 Ill. 2d at 479. If the terms of the policies are unambiguous, they must be given their plain and ordinary meaning. American States, 177 Ill. 2d at 479. If the terms of the policies are capable of more than one meaning, they are construed strictly against the insurer. American States, 177 Ill. 2d at 479.\nThe two policies provide, in part, that defendant agrees to indemnify plaintiff for \u201call risks of physical loss or damage to all real or personal property of every kind and description wherever located occurring during the period of this insurance.\u201d\nDefendant contends that the presence of friable ACBMs and asbestos fibers in plaintiffs schools does not constitute physical loss or damage to property covered under the property insurance policies at issue. In support, defendant cites a New Mexico Supreme Court case, Leafland Group-II, Montgomery Towers Ltd. Partnership v. Insurance Co., 118 N.M. 281, 881 P.2d 26 (1994). Leafland purchased an apartment complex, Montgomery Towers, in 1983. After purchasing the property, Leafland bought a comprehensive insurance policy from Insurance Company of North America (INA) that provided both property coverage and liability coverage for the subject property. Leafland, 118 N.M. at 282, 881 P.2d at 27. Leafland subsequently discovered that asbestos had been used in the construction of Montgomery Towers and that the presence of the asbestos had diminished the value of the property by $1,750,000. Leafland, 118 N.M. at 282, 881 P.2d at 27. Leafland made a claim under the insurance policy, but INA refused to pay for the property\u2019s diminished value. Leafland, 118 N.M. at 282, 881 P.2d at 27.\nThe New Mexico Supreme Court held that the policy, which insured against \u201cdirect loss or damage,\u201d did not cover the diminution in value of the apartment complex caused by the presence of asbestos installed during construction. The court stated that there was \u201cno event that happened during the time the policy was in effect that caused direct loss or damage\u201d to the property. Leafland, 118 N.M. at 282, 881 P.2d at 28.\nLeafland is factually inapposite to the present case because the all-risk policies at issue here contain no language limiting their coverage to \u201cdirect loss or damage\u201d to plaintiff\u2019s buildings. Further, unlike Leafland, which sought coverage for the diminution in value of the property that occurred prior to the policy period, plaintiff here seeks coverage for the removal of ACBMs in its buildings that were in a friable condition and emitting toxic fibers during the policy period.\nOur supreme court has spoken to this issue in United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64 (1991). In Wilkin, school districts and building owners sued Wilkin and others of the \u201casbestos industry.\u201d Wilkin, 144 Ill. 2d at 69. The plaintiffs prayed for reimbursement of incurred asbestos abatement costs. Wilkin, 144 Ill. 2d at 69. Wilkin sought defense and indemnification from United States Fidelity & Guaranty Co. (USF&G), which had issued a comprehensive general liability policy to Wilkin. Wilkin, 144 Ill. 2d at 69-70. Under that policy, USF&G agreed to defend and provide coverage for Wilkin in any action seeking damages on account of \u201cproperty damage\u201d caused by an \u201coccurrence.\u201d Wilkin, 144 Ill. 2d at 70. USF&G\u2019s policy defined property damage as:\n\u201c1) physical injury to or destruction of tangible property, which occurs during the policy period, including the loss of use thereof at any time resulting therefrom.\u201d Wilkin, 144 Ill. 2d at 75.\nUSF&G then brought an action for declaratory judgment that it had no duty to defend or indemnify Wilkin under that policy. Wilkin, 144 Ill. 2d at 70. USF&G argued that the underlying complaints did not allege physical damage to tangible property and that the presence of asbestos-containing products resulted only in economic loss in diminished market values of the buildings. Wilkin, 144 Ill. 2d at 75.\nAfter the trial court granted summary judgment for USF&G and the appellate court reversed (Wilkin, 144 Ill. 2d at 72), our supreme court held that asbestos fiber contamination constitutes physical injury to tangible property, including buildings and their contents, and further noted that it had so held in an earlier case. Wilkin, 144 Ill. 2d at 75, citing Board of Education v. A, C & S, Inc., 131 Ill. 2d 428 (1989). Wilkin quoted from its holding in A, C & S:\n\u201c \u2018[I]t would be incongruous to argue there is no damage to other property when a harmful element exists throughout a building or an area of a building which by law must be corrected ***. The view that asbestos fibers may contaminate a building sufficiently to allege damage to property has been recently adopted in a number of cases. ***\n* * *\n*** The essence of the allegations [of the complaints] is that the buildings have been contaminated by asbestos to the point where corrective action, under the law, must be taken. Thus, the buildings have been damaged.\u2019 \u201d Wilkin, 144 Ill. 2d at 75-76, quoting A, C&S, 131 Ill. 2d at 446-49.\nHere, defendant contends Wilkin is distinguishable because Wilkin involved a third-party liability policy providing coverage for damage to the property of others, whereas this case involves first-party property insurance policies providing coverage for damage to one\u2019s own property. Defendant cites California case law holding that a third-party liability policy generally insures against a broader spectrum of risk than a first-party property insurance policy. See Garvey v. State Farm Fire & Casualty Co., 48 Cal. 3d 395, 770 P.2d 704, 257 Cal. Rptr. 292 (1989); Montrose Chemical Corp. v. Admiral Insurance Co., 10 Cal. 4th 645, 897 P.2d 1, 42 Cal. Rptr. 2d 324 (1995). Defendant submits that the term \u201cproperty damage,\u201d as used in the third-party liability policy in Wilkin, is so broad that it does not necessarily require physical loss or damage to property as is required under the first-party property insurance policies here.\nA close examination of Wilkin is instructive and belies defendant\u2019s argument. \u201cProperty damage\u201d in the liability policy in Wilkin is defined as \u201cphysical injury to or destruction of tangible property.\u201d (Emphasis added.) Wilkin, 144 Ill. 2d at 75. The Wilkin court held that asbestos fiber contamination, if proved, constitutes physical injury to property and therefore meets the liability policy\u2019s definition of property damage. Wilkin, 144 Ill. 2d at 75-76; accord United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App. 3d 598 (1994). Here, the property insurance policies provide a definition of property damage virtually identical to the one used in Wilkin: \u201cphysical loss or damage to all real *** property.\u201d Pursuant to Wilkin, the asbestos fiber contamination in plaintiffs schools meets such a definition of property damage. Thus, Wilkin applies here to defeat summary judgment for defendant.\nNext, defendant contends plaintiff failed to provide sufficient \u201cfactual proof\u2019 of asbestos fiber contamination to withstand its motion for summary judgment. We disagree. The nonmoving party in a summary judgment case is not required to prove his case but must only present some factual basis to support his claim. Prairie v. University of Chicago Hospitals, 298 Ill. App. 3d 316, 326 (1998). Plaintiff presented such a factual basis through the affidavit of Richard Kumnick, who stated that he had examined plaintiff\u2019s high schools and discovered friable ACBMs that were releasing asbestos fibers into the air. Kumnick further opined that the asbestos fibers from the friable ACBMs were recirculating throughout the buildings even into areas not containing asbestos installations. In Kumnick\u2019s opinion, the friable ACBMs constituted a \u201csignificant health hazard to occupants, and therefore had to be removed *** pursuant to the Illinois Asbestos Abatement Act.\u201d Kumnick\u2019s testimony was sufficient to provide a factual basis to support plaintiffs claim of asbestos fiber contamination in its schools.\nOf note, during oral argument on this case, defendant argued that plaintiff had engaged in wholesale removal of asbestos, even asbestos that was not friable or releasing toxic fibers. Defendant contended that, at most, its policies provide coverage only for the removal of friable asbestos and resulting fibers. Wilkin, A, C & S and Gypsum define asbestos property damage as asbestos materials actively releasing toxic fibers, or asbestos materials posing a risk of future fiber release through age, friability, or repeated contact. Thus, the policies at issue here, which indemnify plaintiff for \u201call risks of physical loss or damage to all real or personal property,\u201d would not cover the removal of asbestos or ACBMs that were not releasing toxic fibers or that were not at any risk for future fiber release. The issue of whether plaintiff removed such noncovered asbestos is a factual one inappropriate for resolution by summary judgment.\nNext, defendant contends coverage was never triggered because no physical loss or damage occurred during the period the policies were in effect. In support, defendant again cites Leafland. Leafland held that the use of asbestos in the construction of the subject property had caused that property to diminish in value long before Leafland purchased the property or procured the insurance policy. In other words, the diminution in property value was discovered, but not caused, during the time the policy was in effect. Leafland, 118 N.M. at 284, 881 P.2d at 29. Therefore, the New Mexico Supreme Court held that Leafland could not claim coverage for diminution in property value under the policy. Leafland, 118 N.M. at 284, 881 P.2d at 29.\nHere, defendant asserts that the use of the asbestos similarly predates the issuance of the policies and that, pursuant to Leafland, plaintiff cannot claim coverage under the policies.\nWe disagree. Leafland sought coverage for the diminution in value that occurred prior to the time the policy was in effect, whereas in the present case plaintiff seeks coverage for asbestos removal costs allegedly incurred during the policy period. Therefore, Leafland is factually inapposite. We find more persuasive an Illinois case, Gypsum, which held:\n\u201cFroperty damage ***, whether from the presence of airborne [asbestos] fibers or settled fibers subject to reentrainment, occurs over a span of time and cannot be linked to or confined to different policy periods. The difficulty in determining precisely when the damage occurred or in following its progress or proliferation is further exacerbated by the interchangeable nature of the fibers and that their release occurs on a continuing basis. The precise amount of airborne released fibers and grounded fibers that could be reentrained changes on a continuing basis. The burden of proving exactly when property damage occurred would be virtually impossible.\u201d Gypsum, 268 Ill. App. 3d at 645-46.\nGypsum held that \u201cclaims seeking coverage for property damage caused by asbestos fiber release are prototypes for the appropriate application of the equitable continuous trigger.\u201d Gypsum, 268 Ill. App. 3d at 645. Under the equitable continuous trigger:\n\u201c \u2018[F]roperty damage is deemed to have \u201coccurred\u201d continuously for a fixed period (the \u201ctrigger period\u201d), and every insurer on the risk at any time during that trigger period is jointly and severally liable to the extent of their policy limits, the entire loss being equitably allocated among the insurers. [Citations.]\u2019 \u201d Gypsum, 268 Ill. App. 3d at 644, quoting Sentinel Insurance Co. v. First Insurance Co. of Hawai\u2019i, Ltd., 76 Haw. 277, 298, 875 P.2d 894, 915 (1994).\nIn the present case, the trigger period for coverage purposes begins with the installation of the friable, fiber-releasing asbestos materials and ends when those asbestos materials are removed or contained. See Gypsum, 268 Ill. App. 3d at 645-46. Plaintiff has established, through the affidavit of Richard Kumnick, that friable, fiber-releasing ACBMs were present in its schools since at least 1983. The property insurance policies were in effect at that time; therefore, coverage was triggered.\nDefendant argues that it should not have to pay for asbestos removal costs incurred after the policies expired. Defendant\u2019s argument is flawed, as the proper focus of the analysis should be on the trigger period, not the policy period. Under the equitable continuous trigger, the asbestos property damage is deemed an ongoing, continuous process triggering every policy, including defendant\u2019s, in effect during the period beginning with the installation of the friable, fiber-releasing asbestos materials and ending when those materials are removed or contained.\nWe recognize that Gypsum involved the construction of third-party liability insurance policies, whereas the present case involves the construction of first-party property insurance policies. However, as discussed above, the liability policies in Gypsum and the property insurance policies here each provide coverage for asbestos-related property damage occurring during the respective policy periods. Gypsum adopted the equitable continuous trigger to determine the timing of the asbestos damage for coverage purposes; we find the Gypsum analysis compelling and applicable in the present case.\nFinally, plaintiff contends summary judgment for defendant is inappropriate because coverage of asbestos removal costs is provided under the additional coverage clauses in the policies, specifically, the ordinance deficiency clause, the debris removal clause, the removal clause, and the expense to reduce or prevent loss clause. In its order granting summary judgment for defendant, the trial court did not address whether coverage for plaintiff\u2019s asbestos removal costs is provided under the additional coverage clauses cited above. We need not address this issue here, since we are reversing the trial court\u2019s order granting summary judgment for defendant and remanding for further proceedings.\nFor the foregoing reasons, we reverse the trial court\u2019s order granting summary judgment for defendant and remand for further proceedings.\nReversed and remanded.\nTULLY and O\u2019HARA FROSSARD, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE O\u2019BRIEN" } ], "attorneys": [ "Hager & Siegel, EC., of Chicago (John H. Hager and Elaine K.B. Siegel, of counsel), for appellant.", "Clausen Miller, EC., of Chicago (James T. Ferrini, James R. Swinehart, and Imelda Terrazino, of counsel), for appellee.", "Anderson, Kill & Click, of Fhiladelphia, Fennsylvania (John A. MacDonald, of counsel), for amicus curiae." ], "corrections": "", "head_matter": "BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT No. 211, Plaintiff-Appellant, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1 \u2014 98\u20140084\nOpinion filed March 22, 1999.\nModified on denial of rehearing December 3, 1999.\nHager & Siegel, EC., of Chicago (John H. Hager and Elaine K.B. Siegel, of counsel), for appellant.\nClausen Miller, EC., of Chicago (James T. Ferrini, James R. Swinehart, and Imelda Terrazino, of counsel), for appellee.\nAnderson, Kill & Click, of Fhiladelphia, Fennsylvania (John A. MacDonald, of counsel), for amicus curiae." }, "file_name": "0597-01", "first_page_order": 615, "last_page_order": 623 }