{ "id": 4259872, "name": "NICOR, INC., et al., Plaintiffs-Appellees, v. ASSOCIATED ELECTRIC AND GAS INSURANCE SERVICES LIMITED et al., Defendants (Certain Underwriters at Lloyd's of London et al., Defendants-Appellants)", "name_abbreviation": "Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd.", "decision_date": "2005-11-29", "docket_number": "No. 1\u201404\u20143524", "first_page": "745", "last_page": "756", "citations": [ { "type": "official", "cite": "362 Ill. App. 3d 745" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "722 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 501", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349573 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "506" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0501-01" ] }, { "cite": "676 N.E.2d 1295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "175 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295806 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "215-16" }, { "page": "217" }, { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0201-01" ] }, { "cite": "748 N.E.2d 786", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 909", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132336 ], "year": 2001, "pin_cites": [ { "page": "915" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0909-01" ] }, { "cite": "532 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "each sale and consumption of tainted food constituted a separate occurrence under the policy, where the insured incurred liability each time it served its patrons contaminated food" } ], "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 454", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3620451 ], "year": 1988, "pin_cites": [ { "page": "460", "parenthetical": "each sale and consumption of tainted food constituted a separate occurrence under the policy, where the insured incurred liability each time it served its patrons contaminated food" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0454-01" ] }, { "cite": "728 F.2d 374", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 57642 ], "year": 1984, "pin_cites": [ { "page": "383", "parenthetical": "each shipment of contaminated livestock feed constituted a separate \"occurrence\" because the individual shipments of the substance, rather than the contamination itself, created the exposure to liability" } ], "opinion_index": 0, "case_paths": [ "/f2d/728/0374-01" ] }, { "cite": "578 N.E.2d 1363", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "each time the attorney rendered legal services knowing his activities violated a statute was a separate cause of an injury" } ], "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 86", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5802007 ], "year": 1991, "pin_cites": [ { "page": "103", "parenthetical": "each time the attorney rendered legal services knowing his activities violated a statute was a separate cause of an injury" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0086-01" ] }, { "cite": "542 N.E.2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "in a collision involving three vehicles, claims arose out of two separate accidents because conditions resulting in each collision were not \"substantially the same\"" } ], "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 1091", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2644879 ], "year": 1989, "pin_cites": [ { "page": "1096", "parenthetical": "in a collision involving three vehicles, claims arose out of two separate accidents because conditions resulting in each collision were not \"substantially the same\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/1091-01" ] }, { "cite": "685 N.E.2d 932", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "in lawsuit alleging sexual abuse of a minor by a priest, each repeated \"exposure\" of the minor to the negligently supervised priest in each of the policy periods constituted a separate occurrence" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 447", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725024 ], "year": 1997, "pin_cites": [ { "page": "455", "parenthetical": "in lawsuit alleging sexual abuse of a minor by a priest, each repeated \"exposure\" of the minor to the negligently supervised priest in each of the policy periods constituted a separate occurrence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0447-01" ] }, { "cite": "796 F. Supp. 929", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3776891 ], "weight": 8, "year": 1992, "pin_cites": [ { "page": "932" }, { "page": "937" }, { "page": "937" }, { "page": "938" }, { "page": "938" }, { "page": "938" }, { "page": "938" }, { "page": "938" } ], "opinion_index": 0, "case_paths": [ "/f-supp/796/0929-01" ] }, { "cite": "727 F. Supp. 1524", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4062455 ], "year": 1989, "pin_cites": [ { "page": "1530" } ], "opinion_index": 0, "case_paths": [ "/f-supp/727/1524-01" ] }, { "cite": "472 F. Supp. 26", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4082438 ], "year": 1979, "pin_cites": [ { "parenthetical": "the negligent unloading of a ship resulting in more than 200 holes to the ship's surface during a nine-day period was a single occurrence" } ], "opinion_index": 0, "case_paths": [ "/f-supp/472/0026-01" ] }, { "cite": "307 A.2d 639", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1973, "pin_cites": [ { "parenthetical": "single occurrence where one employee damaged 34 apartments in a two-day period" } ], "opinion_index": 0 }, { "cite": "124 N.J. Super. 466", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 314778 ], "year": 1973, "pin_cites": [ { "parenthetical": "single occurrence where one employee damaged 34 apartments in a two-day period" } ], "opinion_index": 0, "case_paths": [ "/nj-super/124/0466-01" ] }, { "cite": "85 C 8519", "category": "reporters:state", "reporter": "Cow.", "year": 1987, "opinion_index": 0 }, { "cite": "597 F. Supp. 1515", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3709152 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "1527" }, { "page": "1527" }, { "page": "1527" } ], "opinion_index": 0, "case_paths": [ "/f-supp/597/1515-01" ] }, { "cite": "643 N.E.2d 1226", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 598", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381801 ], "weight": 7, "year": 1994, "pin_cites": [ { "page": "650" }, { "page": "648" }, { "page": "649" }, { "page": "651" }, { "page": "650" }, { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0598-01" ] }, { "cite": "776 N.E.2d 588", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 871", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 486540 ], "weight": 8, "year": 2002, "pin_cites": [ { "page": "881" }, { "page": "881" }, { "page": "882" }, { "page": "882" }, { "page": "882" }, { "page": "882" }, { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0871-01" ] }, { "cite": "687 N.E.2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "177 Ill. 2d 473", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317117 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "479" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0473-01" ] }, { "cite": "830 N.E.2d 575", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "215 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4059670 ], "year": 2005, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0381-01" ] }, { "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": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] }, { "cite": "739 N.E.2d 1049", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "parenthetical": "discriminatory hiring claims were separate occurrences where each hiring decision involved a \"human agency committing a specific act,\" and there was no well-defined policy with a discriminatory impact" } ], "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1025968 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "749" }, { "page": "748-49", "parenthetical": "discriminatory hiring claims were separate occurrences where each hiring decision involved a \"human agency committing a specific act,\" and there was no well-defined policy with a discriminatory impact" }, { "page": "749-50" }, { "page": "749-50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0737-01" ] }, { "cite": "760 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "326 Ill. App. 3d 210", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281390 ], "year": 2001, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0210-01" ] }, { "cite": "695 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "182 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864532 ], "year": 1998, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0359-01" ] }, { "cite": "649 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "165 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483569 ], "year": 1995, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0107-01" ] } ], "analysis": { "cardinality": 1156, "char_count": 27191, "ocr_confidence": 0.777, "pagerank": { "raw": 6.830302594227123e-08, "percentile": 0.41682681113841 }, "sha256": "65210229c6fdc007ada2c2f349602d28c405631434a5fb0dfef52b50aefb183c", "simhash": "1:18a62a5d79457cb0", "word_count": 4282 }, "last_updated": "2023-07-14T16:28:25.526171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NICOR, INC., et al., Plaintiffs-Appellees, v. ASSOCIATED ELECTRIC AND GAS INSURANCE SERVICES LIMITED et al., Defendants (Certain Underwriters at Lloyd\u2019s of London et al., Defendants-Appellants)." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThe $10 million question in this case is whether mercury spills during 17 years of insurance coverage were a single occurrence or separate occurrences.\nNicor, Inc., and Northern Illinois Gas Co., d/b/a Nicor Gas Co. (Ni-cor), seek coverage from their general liability insurers for costs associated with the investigation and cleanup of mercury in customers\u2019 residences during a 17-year period. The mercury contamination was the result of Nicor\u2019s removal of mercury-containing gas meter regulators. In 0.5% of the removals, mercury was spilled.\nThe trial court entered partial summary judgment for Nicor, finding Nicor\u2019s \u201csystematic failure to consistently remove the mercury regulators in a safe manner resulted in a single \u2018occurrence\u2019 under [the policies].\u201d On appeal, the defendants (London Insurers) contend each of the spills that resulted in mercury contamination was a separate \u201coccurrence\u201d under the policies, requiring Nicor to pay separate self-insured retentions (SIRs). We reverse and remand.\nFACTS\nNicor supplies natural gas to residential and commercial properties throughout Northern Illinois and Chicago. As part of its service, Nicor installs gas meters to measure the amount of natural gas being supplied to the properties. The meters include a regulator that controls the flow of gas into a residence. Prior to the mid-1950s, Nicor installed regulators inside customers\u2019 homes. The regulators contained a small amount (approximately 1.5 to 4 fluid ounces) of mercury. Beginning in 1961, Nicor began using temperature-compensating or mechanical-relief meters that could be installed on the outside of customers\u2019 homes. Those meters did not contain mercury.\nIn 1961, Nicor began removing the mercury-containing regulators. When service crews visited a home to perform maintenance or repair work, they would remove a mercury-containing meter from inside a residence and replace it with a temperature-compensating meter outside the residence. Nicor used written materials and videotapes to train its employees in the proper removal procedures. When removing the regulators from customers\u2019 homes, Nicor\u2019s technicians occasionally tilted or dropped the regulators and spilled the mercury.\nBy early 2000, Nicor had received isolated claims of mercury contamination in the homes of some customers. On September 5, 2000, the Illinois Attorney General and the State\u2019s Attorneys of Cook, Du Page, and Will Counties filed a lawsuit against Nicor demanding that Nicor investigate the extent of mercury contamination in all potentially impacted homes and clean all homes where mercury contamination was detected above an established threshold.\nOn September 12, 2000, the circuit court entered an agreed preliminary injunction in the Attorney General\u2019s action. The court ordered Nicor to begin the identification, investigation, and cleanup of homes contaminated by mercury spills from regulators. The order codified the removal procedures for regulators as well as the procedures to be followed in case of a spill during removal. Nicor admits the order provided for the same general procedures for the removal of mercury-containing regulators as were set forth in Nicor\u2019s safety program guidelines promulgated in 2000.\nPursuant to the court\u2019s order, Nicor inspected about 200,000 residences. Of those inspected, approximately 1,070 homes tested positive for the presence of mercury at levels above those mandated by the court. Those residences represented about 0.5% of all inspected residences. Nicor incurred approximately $90 million in connection with the investigation and cleanup of the mercury contamination. According to the appellants\u2019 brief, mercury spills occurred in 195 homes during the policy periods relevant to this appeal.\nNicor estimates there were approximately 155,554 indoor mercury-containing regulators in the system before 1961. As of January 2001, 25,905 indoor mercury-containing regulators remained in the system. On October 10, 2001, the court entered an order finding Nicor had complied with the terms of the September 12, 2000, order.\nSeveral customer class action lawsuits also were filed against Ni-cor and its contractors as a result of the mercury contamination. The suits were consolidated into a single class action. The class action was settled in October 2001. The settlement incorporated monetary relief as well as the investigation and cleanup procedures that resolved the Attorney General\u2019s action.\nThe excess liability insurance policies at issue cover the period from 1961 through 1978. The insuring agreements require London Insurers to indemnify Nicor for \u201call sums\u201d Nicor becomes legally obligated to pay because of property damage caused by or growing out of an \u201coccurrence.\u201d There were two sets of policies covering the time period. The policies issued between 1961 and November 1976 define an \u201coccurrence\u201d as:\n\u201cone happening or series of happenings, arising out of or due to one event taking place during the term of this contract.\u201d\nThe policies issued from November 1976 through 1978 define an \u201coccurrence\u201d as:\n\u201c(1) an accident, or\n(2) event or continuous or repeated exposure to conditions which result in bodily injury, personal injury, death or physical damage to or destruction of tangible property, including loss of use. All damages arising out of such exposure to substantially the same general conditions shall be considered as arising out of one occurrence.\u201d\nThe policies provide coverage in excess of a self-insured retention (SIR). The amount of the SIR ranges from $100,000 to $250,000, according to the policy period. Nicor is responsible for satisfying the SIR for losses paid as a consequence of a covered occurrence before London Insurers is required to indemnify Nicor for that occurrence. The cost to Nicor to remediate any individual home rarely exceeded the per-occurrence SIR.\nOn November 13, 2000, Nicor brought a complaint for declaratory judgment, breach of contract, and anticipatory breach of contract against its insurers. Those of Nicor\u2019s insurers who settled with Nicor or were dismissed are not parties to this appeal.\nIn a pretrial stipulation, the parties stipulated that \u201c[mjercury contamination found in the residences of Nicor\u2019s customers was more likely than not due to the removal of mercury-containing regulators from inside the homes.\u201d They further stipulated that at least one mercury spill occurred during each policy period that the London policies were in place.\nNicor and London Insurers filed cross-motions for summary judgment on the issue of the number of occurrences. For purposes of the motions, Nicor stipulated that the loss associated with each individual home contaminated by mercury did not exceed the applicable SIR of the particular policy. In other words, if the trial court found each mercury spill was a separate occurrence, London Insurers would owe nothing.\nOn September 1, 2004, the court found in favor of Nicor. In its memorandum opinion and order, the court found Nicor\u2019s improper removal of mercury regulators must be regarded as a single occurrence under the policies. The court said:\n\u201cIn this case, plaintiff Nicor\u2019s inconsistent and unsafe conduct in removing the mercury containing regulators created harmful results. These harmful results stemmed from Nicor\u2019s failure to appropriately and carefully follow an acceptable procedure in removing the mercury regulators. Although harm did not result every time a mercury regulator was removed from a home, such harm was consistently and routinely a result of Nicor\u2019s failure to invoke proper procedures to safely remove the mercury regulators.\u201d\nNicor and London Insurers subsequently stipulated to the remaining facts and issues necessary for the trial court to enter judgment in Nicor\u2019s favor. On October 25, 2004, a final judgment was entered against London Insurers in favor of Nicor in the amount of $10,281,703.46.\nDECISION\n\u201cSummary judgment is appropriate when there is no genuine issue of material fact and the moving party\u2019s right to judgment is clear and free from doubt.\u201d Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Our review of the trial court\u2019s grant of partial summary judgment is de novo. Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 374, 695 N.E.2d 853 (1998). The construction of the provisions of an insurance policy also is subject to de novo review. Krusinski Construction Co. v. Northbrook Property & Casualty Insurance Co., 326 Ill. App. 3d 210, 218, 760 N.E.2d 530 (2001). The determination of the scope of an insurance policy is a question of law appropriately decided in a motion for summary judgment. Illinois Central R.R. Co. v. Accident & Casualty Co. of Winterthur, 317 Ill. App. 3d 737, 749, 739 N.E.2d 1049 (2000).\nOur primary objective in construing the language of an insurance policy is to ascertain and give effect to the intent of the parties to the contract. We must \u201cconstrue the policy as a whole, taking into account the type of insurance for which the parties have contracted, the risks undertaken and purchased, the subject matter that is insured and the purposes of the entire contract.\u201d Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391, 620 N.E.2d 1073 (1993). If the terms of the policy are clear and unambiguous, they must be given their plain and ordinary meaning. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 393, 830 N.E.2d 575 (2005). If the terms are susceptible to more than one meaning, they are ambiguous and will be construed strictly against the insurer. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479, 687 N.E.2d 72 (1997). Provisions that limit or exclude coverage will be interpreted liberally in favor of the insured. Koloms, 177 Ill. 2d at 479.\nThe issue is whether, under the insurance policies, Nicor\u2019s liability resulted from a single \u201coccurrence\u201d or multiple separate \u201coccurrences.\u201d Illinois follows the majority of jurisdictions in using the \u201ccause\u201d analysis to determine the number of occurrences. Aetna Casualty & Surety Co. v. O\u2019Rourke Bros., Inc., 333 Ill. App. 3d 871, 881, 776 N.E.2d 588 (2002). The court looks to the underlying cause or causes of the damage rather than to the number of individual claims or injuries. O\u2019Rourke, 333 Ill. App. 3d at 881. \u201c \u2018[T]he [cjourt\u2019s inquiry is whether there was one proximate, uninterrupted and continuing cause which resulted in all of the injuries and damages.\u2019 \u201d United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App. 3d 598, 650, 643 N.E.2d 1226 (1994), quoting Owens-Illinois, Inc. v. Aetna Casualty & Surety Co., 597 F. Supp. 1515, 1527 (D.D.C. 1984).\nThe parties offer different definitions of the \u201ccause\u201d of the damages in this case. London Insurers say the mercury spills resulted from multiple, separate causes, depending on the independent conduct of the particular Nicor servicemen and the unique circumstances of each house. The insurers point to the fact that 99.5% of the removals occurred without incident, and, according to a Nicor employee, it was a \u201crare event\u201d that mercury would be spilled in the course of removing a regulator.\nThe reasons for spills were varied. They included carelessness or negligence by employees, accidental tripping or stumbling, and the particular circumstances presented by each customer\u2019s home. For example, appliances, cabinets, or shelves might be located close to the regulator or built around the regulator. The spills occurred over the course of 20 years, 17 of them coverage periods. As part of the court order settling the Attorney General\u2019s litigation, Nicor agreed to continue removing the regulators using essentially the same procedures it had been using.\nNicor says the damages arose from a single occurrence under the policies. Nicor defines the cause as the recurring, system-wide removal of the mercury-containing regulators \u201cin a manner resulting in a spill.\u201d It relies on a number of cases which, Nicor says, support a finding of a single occurrence where injuries are system-wide and recurrent. See Household Manufacturing, Inc. v. Liberty Mutual Insurance Co., No. 85 C 8519 (N.D. Ill. February 11, 1987); United States Gypsum, 268 Ill. App. 3d 598, 643 N.E.2d 1226; O\u2019Rourke, 333 Ill. App. 3d 871, 776 N.E.2d 588.\nIn Household, the plaintiff manufactured and sold a plumbing system to plumbing contractors, who then installed the system for residential use. Although the plumbing system consisted of several separate components, it was designed, marketed, sold, and warranted as a single, unified plumbing system. The court rejected the insurer\u2019s attempt to separate damage claims based on the discrete component complained to be defective. Household, slip op. at 4-5. Moreover, the court found the insurance policy\u2019s plural use of \u201cconditions\u201d in its definition of \u201coccurrence\u201d (i.e., \u201ccontinued or repeated exposure to conditions\u201d) \u201cstrongly supports the inference that more than one specific physical defect can give rise to a single occurrence.\u201d Household, slip op. at 4-5. Thus, the act that gave rise to plaintiff\u2019s liability in more than 60 lawsuits was its continuous and repeated sale of a defective product, which constituted a single occurrence. Household, slip op. at 4.\nSimilarly, the court in United States Gypsum found that Gypsum\u2019s continuing process of manufacturing and selling asbestos-containing products constituted one occurrence, even though approximately 250 claims were filed against Gypsum. United States Gypsum, 268 Ill. App. 3d at 648. The language of the insurance policies provided damage that resulted from \u201c \u2018substantially the same condition\u2019 \u201d or out of a \u201c \u2018common defect, condition or cause\u2019 \u201d constituted a single occurrence. United States Gypsum, 268 Ill. App. 3d at 649. The court likened the damages to those in which an insured\u2019s conduct is repetitive and results in a number of similar injuries. United States Gypsum, 268 Ill. App. 3d at 651, citing Wilkinson & Son, Inc. v. Providence Washington Insurance Co., 124 N.J. Super. 466, 307 A.2d 639 (1973) (single occurrence where one employee damaged 34 apartments in a two-day period), and Michaels v. Mutual Marine Office, Inc., 472 F. Supp. 26 (S.D.N.Y. 1979) (the negligent unloading of a ship resulting in more than 200 holes to the ship\u2019s surface during a nine-day period was a single occurrence).\nThe court noted other courts generally hold that where the \u201c \u2018continuous production and sale of an intrinsically harmful product results in similar kinds of injury or property damage, then all such injury or property damage results from a common occurrence.\u2019 \u201d United States Gypsum, 268 Ill. App. 3d at 650, quoting Dow Chemical Co. v. Associated Indemnity Corp., 727 F. Supp. 1524, 1530 (E.D. Mich. 1989).\nRelying on United States Gypsum, the court in O\u2019Rourke found O\u2019Rourke\u2019s continued solicitation of its satellite system constituted one occurrence, giving rise to all of plaintiffs\u2019 claims. O\u2019Rourke, 333 Ill. App. 3d at 882. Because each plaintiffs settled claim fell below the policy retained limit, a finding of multiple occurrences would make O\u2019Rourke liable for all damages awards, and Aetna for none. O\u2019Rourke, 333 Ill. App. 3d at 882. The court found that this would, in effect, deny O\u2019Rourke coverage and make Aetna\u2019s policy illusory. O\u2019Rourke, 333 Ill. App. 3d at 882.\nWe believe the cases cited by Nicor in favor of finding a single occurrence are distinguishable and in fact support the interpretation offered by the insurers. In United States Gypsum, the court rejected the insurer\u2019s argument that each installation of asbestos-containing products in a building constituted a separate occurrence. The reason for that rejection has an impact in this case. The court took pains to distinguish the manufacture and sale of defective products from the installation of such products:\n\u201cIt would be unwise and without support in case law to determine that each installation of the asbestos-containing products constituted a separate occurrence when Gypsum\u2019s liability is predicated on its involvement in the manufacture and sale of the products rather than the installation of the products.\u201d United States Gypsum, 268 Ill. App. 3d at 651.\nWe read the court as saying that had Gypsum\u2019s liability been predicated on the installation of the defective products rather than their manufacture and sale, the court would have found each installation constituted a separate occurrence. Both parties agree we are not deciding a case involving the manufacture and sale of defective products, as in United States Gypsum, or the sale of products, as in Household and O\u2019Rourke. No mercury was spilled, and no damages occurred, until the mercury-containing regulators were removed.\nNicor has taken the position that the single event or occurrence it relies on is removal of the regulators in a manner that resulted in mercury spills. The removal of a defective product is more similar to the installation of a product than to the manufacture and sale of products. To say the manner in which the removals occurred over a period of 20 years is \u201cone event\u201d or a single occurrence defies common sense.\nNicor\u2019s argument is similar to that advanced by the insured in Norfolk & Western Ry. Co. v. Accident & Casualty Insurance Co. of Winterthur, 796 F. Supp. 929, 932 (W.D. Va. 1992). The ease involved railroad employees\u2019 claims of hearing loss from excess noise. The railroad contended its negligence in failing to protect its employees was the single cause of the injuries. Norfolk, 796 F. Supp. at 937. Calling the railroad\u2019s argument \u201cnonsensical,\u201d the court found the argument removed any limit from the category of things which might be found to be a cause. \u201cBy moving the analysis of cause to a level sufficiently general to support an interpretation which would maximize coverage, the railroad has attempted to convert the cause test into a rubber stamp which would justify coverage in every case.\u201d Norfolk, 796 F. Supp. at 937.\nWe have held that where each asserted loss is the result of a separate and independent intervening human act, either negligent or intentional, each loss arises from a separate occurrence. See Illinois Central R.R. Co. v. Accident & Casualty Co. of Winterthur, 317 Ill. App. 3d 737, 748-49, 739 N.E.2d 1049 (2000) (discriminatory hiring claims were separate occurrences where each hiring decision involved a \u201chuman agency committing a specific act,\u201d and there was no well-defined policy with a discriminatory impact); Roman Catholic Diocese of Joliet, Inc. v. Lee, 292 Ill. App. 3d 447, 455, 685 N.E.2d 932 (1997) (in lawsuit alleging sexual abuse of a minor by a priest, each repeated \u201cexposure\u201d of the minor to the negligently supervised priest in each of the policy periods constituted a separate occurrence); Illinois National Insurance Co. v. Szczepkowicz, 185 Ill. App. 3d 1091, 1096, 542 N.E.2d 90 (1989) (in a collision involving three vehicles, claims arose out of two separate accidents because conditions resulting in each collision were not \u201csubstantially the same\u201d).\nCourts also have found separate occurrences where each act increased the insured\u2019s exposure to liability. See Village of Camp Point v. Continental Casualty Co., 219 Ill. App. 3d 86, 103, 578 N.E.2d 1363 (1991) (each time the attorney rendered legal services knowing his activities violated a statute was a separate cause of an injury); Michigan Chemical Corp. v. American Home Assurance Co., 728 F.2d 374, 383 (6th Cir. 1984) (each shipment of contaminated livestock feed constituted a separate \u201coccurrence\u201d because the individual shipments of the substance, rather than the contamination itself, created the exposure to liability); Mason v. Home Insurance Co. of Illinois, 177 Ill. App. 3d 454, 460, 532 N.E.2d 526 (1988) (each sale and consumption of tainted food constituted a separate occurrence under the policy, where the insured incurred liability each time it served its patrons contaminated food).\nHere, Nicor incurred liability each time mercury was spilled from a regulator. Rather than attributing the cause of the damage to a system-wide failure by Nicor to remove the regulators safely, we find the spills occurred in an isolated number of cases as a result of an individual serviceman\u2019s actions or the particular circumstances in each residence.\nNicor advances other arguments in support of its contention that the systematic removal of the regulators in a manner resulting in mercury spills was one occurrence, none of which we find persuasive.\nNicor contends that by framing each spill as the result of a separate and independent act, London Insurers are attempting to evade the cause test and are asking this court to look at the more distant \u201ccause of the cause.\u201d For example, Nicor contends that London Insurers ask the court to separate occurrences based on whether the spill was the result of negligence, as opposed to an accident, and whether the spill was caused by the tipping of a regulator when being removed from its position, as opposed to spilling while the regulator was being carried out of the home. We disagree with Nicor\u2019s contention. As we have stated, we believe it is more logical to say the damages were caused by each individual removal than by the general, system-wide removal in a manner resulting in spills over the course of 20 years.\nNicor contends a finding of multiple occurrences would render its insurance coverage illusory, as the court held in O\u2019Rourke, 333 Ill. App. 3d at 882. Courts have found insurance policies were rendered meaningless where it was unlikely that a single claim would generate enough damage to meet a large self-insurance retention. See Owens-Illinois, Inc. v. Aetna Casualty & Surety Co., 597 F. Supp. 1515, 1527 (D.D.C. 1984); O\u2019Rourke, 333 Ill. App. 3d at 871. Courts often employ the reasonable expectation test to determine whether an insurance policy is illusory. See, e.g., Norfolk, 796 F. Supp. at 938; Owens-Illinois, Inc., 597 F. Supp. at 1527; Michael Nicholas, Inc. v. Royal Insurance Co. of America, 321 Ill. App. 3d 909, 915, 748 N.E.2d 786 (2001). The policy need not provide coverage against all possible liabilities; if it provides coverage against some, the policy is not illusory. Norfolk, 796 F. Supp. at 938.\nIn Norfolk, the court held if the claims arose out of separate occurrences, the insurance policy was not rendered meaningless because there were other possible liabilities covered by the policy. Norfolk, 796 F. Supp. at 938. The claims did not appear to be the type of \u201cbig bang\u201d catastrophe the railroad intended to insure. Norfolk, 796 F. Supp. at 938. The railroad sought insurance coverage for an incident where a train spilled toxic chemicals in several places in a heavily populated area. Norfolk, 796 F. Supp. at 938. The court found the incidents of spill were separate occurrences. We believe the policy in this case is similar to that in Norfolk.\nIt is easy to envision a scenario where the policies at issue would have provided coverage to Nicor. For example, had there been a single spill of toxic chemicals resulting in widespread damage to property, the policies would have provided coverage.\nNext, Nicor contends a stipulation between the parties amounted to a concession by London Insurers. At trial, Nicor and London Insurers, along with several other party insurers, entered a stipulation regarding the testimony of expert witness Philip Cali. In lieu of calling this witness, the parties agreed that: (1) \u201c[m]ercury contamination found in the residences of Nicor\u2019s customers was more likely than not due to the removal of mercury-containing regulators from inside the homes,\u201d and (2) \u201cthe earliest date of contamination as being more likely than not the date the regulator was removed.\u201d\nNicor contends the underlying actions brought by the Illinois Attorney General and the consolidated class established the cause as a single occurrence. Nicor relies on the following evidence: each action alleged a common and collective injury; the Illinois Attorney General did not allege individual spills to be isolated incidents; the Illinois Attorney General and the consolidated class actions sought to require Nicor to investigate and perform remediation across its entire system; and each action resulted in a comprehensive order, on behalf of all affected residents. Nicor contends that, because the underlying actions treated the cause as a single occurrence, this court must find the same.\nA similar argument was rejected in Illinois Central, where the insured contended the federal court\u2019s finding in the underlying litigation required the appellate court to find a single occurrence. Illinois Central, 317 Ill. App. 3d at 749-50. In rejecting this argument, the court distinguished the purpose of the underlying litigation from the current task of determining the impact of the damage in terms of number of occurrences. Illinois Central, 317 Ill. App. 3d at 749-50. Similarly, the purpose of the Attorney General and consolidated class actions here was not to determine the number of occurrences.\nFinally, Nicor contends a finding of multiple occurrences would violate Illinois public policy. Determination of whether an insurance contract is contrary to public policy depends on the facts and circumstances of each case, as well as the language of the contract. Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 215-16, 676 N.E.2d 1295 (1997); American Country Insurance Co. v. Cline, 309 Ill. App. 3d 501, 506, 722 N.E.2d 755 (1999). Courts prefer construing a contract so that the agreement is enforceable rather than void. Braye, 175 Ill. 2d at 217. In Braye, the court presumed parties to the contract knew the law in existence at the time they executed the contract and read the contract language so as not to violate public policy. Braye, 175 Ill. 2d at 217. The court in American Country endorsed an insurance policy that contained an exclusion provision where the insureds were sophisticated businesses that, assumedly, would negotiate coverage prior to execution of the contract. American Country, 309 Ill. App. 3d at 511. Nicor was not an unsophisticated individual consumer when it purchased the insurance policies. We do not find any violation of public policy stemming from our reading of the insurance contracts.\nCONCLUSION\nWe reverse the trial court\u2019s order entering summary judgment for Nicor and remand for proceedings consistent with our conclusion that each mercuxy spill was a separate occurrence.\nReversed and remanded with directions.\nGARCIA, P.J., and SOUTH, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Stephen M. Murray, Dale T. Miller, Hugh C. Griffin, and Adam L. Frankel, all of Lord, Bissell & Brook, LLP, of Chicago, for appellants.", "John D. Shugrue, Daniel J. Struck, and Todd E. Domjan, all of Morgan, Lewis & Bockius, LLP, of Chicago, for appellees." ], "corrections": "", "head_matter": "NICOR, INC., et al., Plaintiffs-Appellees, v. ASSOCIATED ELECTRIC AND GAS INSURANCE SERVICES LIMITED et al., Defendants (Certain Underwriters at Lloyd\u2019s of London et al., Defendants-Appellants).\nFirst District (2nd Division)\nNo. 1\u201404\u20143524\nOpinion filed November 29, 2005.\nStephen M. Murray, Dale T. Miller, Hugh C. Griffin, and Adam L. Frankel, all of Lord, Bissell & Brook, LLP, of Chicago, for appellants.\nJohn D. Shugrue, Daniel J. Struck, and Todd E. Domjan, all of Morgan, Lewis & Bockius, LLP, of Chicago, for appellees." }, "file_name": "0745-01", "first_page_order": 763, "last_page_order": 774 }