{ "id": 4281917, "name": "ALLIANZ INSURANCE COMPANY et al., Plaintiffs-Appellees, v. GUIDANT CORPORATION et al., Defendants-Appellants", "name_abbreviation": "Allianz Insurance v. Guidant Corp.", "decision_date": "2008-12-29", "docket_number": "No. 2-07-0814", "first_page": "1008", "last_page": "1034", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 1008" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "616 N.E.2d 1034", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10860196 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1037", "parenthetical": "\"Generally, collateral estoppel operates to bar a subsequent re-litigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in the subsequent lawsuit\"" }, { "page": "1039", "parenthetical": "\"Collateral estoppel promotes judicial economy; in particular, it reduces the amount of court time devoted to retrying previously litigated issues\"" } ], "opinion_index": 0, "case_paths": [ "/ne2d/616/1034-01" ] }, { "cite": "363 N.E.2d 1004", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "1009", "parenthetical": "\"A judgment is final pending appeal\"" } ], "opinion_index": 0 }, { "cite": "355 Ill. App. 3d 721", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600472 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0721-01" ] }, { "cite": "373 Ill. App. 3d 652", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269622 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0652-01" ] }, { "cite": "371 Ill. App. 3d 1096", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268584 ], "year": 2007, "pin_cites": [ { "page": "1099" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/371/1096-01" ] }, { "cite": "325 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 569772 ], "year": 2001, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0820-01" ] }, { "cite": "363 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5765986 ], "year": 2005, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0335-01" ] }, { "cite": "213 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448460 ], "year": 2004, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0141-01" ] }, { "cite": "374 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 7328640 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "585" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/374/0580-01" ] }, { "cite": "382 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277637 ], "year": 2008, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0688-01" ] }, { "cite": "384 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4279982 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "973" }, { "page": "973" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0969-01" ] }, { "cite": "336 Ill. App. 3d 635", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599241 ], "year": 2002, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0635-01" ] }, { "cite": "362 Ill. App. 3d 571", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260674 ], "year": 2005, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/0571-01" ] }, { "cite": "354 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3217608 ], "year": 2004, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0699-01" ] }, { "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": "20 F.3d 289", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10505369 ], "year": 1994, "pin_cites": [ { "page": "294", "parenthetical": "noting that the purpose of collateral estoppel is to prevent relitigation of the same issues in a subsequent case and that the reasons for the doctrine are \"hardly served\" where the effort of litigation has already been undertaken" } ], "opinion_index": 0, "case_paths": [ "/f3d/20/0289-01" ] }, { "cite": "402 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11067597 ], "year": 1980, "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ne2d/402/0448-01" ] }, { "cite": "550 N.E.2d 340", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10958357 ], "year": 1990, "pin_cites": [ { "page": "341", "parenthetical": "\"Our rules specifically state a partial summary judgment order which does not include the required language *** 'shall be,' interlocutory\"" } ], "opinion_index": 0, "case_paths": [ "/ne2d/550/0340-01" ] }, { "cite": "834 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8901382 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "704", "parenthetical": "\"Collateral estoppel does not extend to matters that were not expressly adjudicated and can be inferred only by argument\"" }, { "page": "704", "parenthetical": "\"Collateral estoppel does not extend to matters that were not expressly adjudicated and can be inferred only by argument\"" } ], "opinion_index": 0, "case_paths": [ "/ne2d/834/0699-01" ] }, { "cite": "616 N.E.2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10832962 ], "year": 1993, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ne2d/616/0034-01" ] }, { "cite": "231 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3616755 ], "year": 2008, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/231/0092-01" ] }, { "cite": "105 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5468815 ], "year": 1982, "pin_cites": [ { "page": "7", "parenthetical": "\"[I]t has been recognized that the forum [sjtate may apply its own rules of collateral estoppel\" when deciding the effect of a foreign judgment" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0001-01" ] }, { "cite": "193 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963681 ], "year": 2000, "pin_cites": [ { "page": "565", "parenthetical": "applying Missouri law in determining whether Illinois claim is barred as res judicata by a Missouri court judgment" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0560-01" ] }, { "cite": "852 N.E.2d 644", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8470742 ], "year": 2006, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/ne2d/852/0644-01" ] }, { "cite": "193 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963708 ], "year": 2000, "pin_cites": [ { "page": "388", "parenthetical": "\"Even when the threshold requirements are satisfied, the doctrine should not be applied unless it is clear that no unfairness will result to the party sought to be estopped\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0378-01" ] }, { "cite": "355 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600315 ], "year": 2005, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0629-01" ] }, { "cite": "597 N.E.2d 376", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10822758 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "379" }, { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ne2d/597/0376-01" ] }, { "cite": "675 N.E.2d 1134", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11916353 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "1137" }, { "page": "1137" }, { "page": "1137" }, { "page": "1137", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ne2d/675/1134-01" ] }, { "cite": "372 Ill. App. 3d 24", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269249 ], "year": 2007, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0024-01" ] }, { "cite": "216 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3827784 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "38" }, { "page": "38" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0023-01" ] }, { "cite": "527 N.E.2d 1141", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10931656 ], "year": 1988, "pin_cites": [ { "page": "1146", "parenthetical": "considering whether the full faith and credit clause applied with regard to Illinois judgment and claim of issue preclusion" } ], "opinion_index": 0, "case_paths": [ "/ne2d/527/1141-01" ] }, { "cite": "373 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4270056 ], "year": 2007, "pin_cites": [ { "page": "974", "parenthetical": "noting that the full faith and credit clause extends doctrine of res judicata to judgments entered in other states" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0969-01" ] }, { "cite": "743 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11115078 ], "year": 2001, "pin_cites": [ { "page": "374", "parenthetical": "\"Issue preclusion bars subsequent relitigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in a subsequent action\"" } ], "opinion_index": 0, "case_paths": [ "/ne2d/743/0370-01" ] }, { "cite": "195 Ill. 2d 71", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725381 ], "year": 2001, "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0071-01" ] }, { "cite": "114 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542407 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "113" }, { "page": "113" }, { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0107-01" ] }, { "cite": "74 Ill. App. 2d 314", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2580435 ], "year": 1966, "pin_cites": [ { "page": "324", "parenthetical": "holding that affirmative defense that arose immediately prior to trial is available without pleading" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0314-01" ] }, { "cite": "382 Ill. App. 3d 334", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277150 ], "year": 2008, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0334-01" ] }, { "cite": "304 Ill. App. 3d 939", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564564 ], "year": 1999, "pin_cites": [ { "page": "952" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0939-01" ] }, { "cite": "884 N.E.2d 405", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8374871 ], "weight": 10, "year": 2008, "pin_cites": [ { "page": "420" }, { "page": "420" }, { "page": "421-22" }, { "page": "422" }, { "page": "422-23" } ], "opinion_index": 0, "case_paths": [ "/ne2d/884/0405-01" ] } ], "analysis": { "cardinality": 1743, "char_count": 68851, "ocr_confidence": 0.772, "pagerank": { "raw": 7.545025413719056e-08, "percentile": 0.4478232128591281 }, "sha256": "d813c1e04eb4bbd0d260650627f274c805a79be929030a21b6ecdb98e44763c4", "simhash": "1:13e6454725e9c166", "word_count": 10994 }, "last_updated": "2023-07-14T22:05:00.567552+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALLIANZ INSURANCE COMPANY et al., Plaintiffs-Appellees, v. GUIDANT CORPORATION et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nThis appeal involves the scope of insurance coverage for numerous product liability claims involving an implantable graft used in the repair of abdominal aortic aneurysms. The circuit court of Du Page County granted partial summary judgment in favor of plaintiffs, Allianz Insurance Company (Allianz) and other insurers. On appeal, defendants, Guidant Corporation (Guidant) and several of its affiliates, seek reversal of the trial court\u2019s ruling. For the reasons that follow, we affirm.\nI. BACKGROUND\nA. The Ancure Device\nThe medical instrument at the center of this dispute is the \u201cAn-cure Endograft System\u201d (Ancure Device), a Y-shaped, synthetic vascular graft with an accompanying delivery catheter. The Ancure Device is used in the repair of an abdominal aortic aneurysm, a potentially life-threatening condition arising from the development of a weak area in the abdominal portion of the wall of the aorta. As a result of this weakness, the artery balloons and, in more severe cases, ruptures. Abdominal aortic aneurysms generally require open abdominal surgery to repair. However, the Ancure Device provides an alternative to traditional \u201copen repair\u201d surgery. The device is implanted by making small incisions in the arteries of the patient\u2019s groin and threading the delivery catheter upward through blood vessels to where the graft is put in place to support the weakened area. The Ancure Device was developed by Endovascular Technologies, Inc. (EVT), in the 1990s. Guidant acquired EVT in 1997. In September 1999, the United States Food and Drug Administration (FDA) approved the Ancure Device for sale.\nB. The Insurance Policies\nAllianz and Zurich Specialties London Limited (Zurich), Gerling Konzern Allgemeine Versicherungs \u2014 AG (Gerling), Liberty International Insurance Company (Liberty), American International Specialty Lines Insurance Company (AISLIC), Westchester Fire Insurance Company (Westchester), and Lumbermens Mutual Casualty Company (Lumbermens) (collectively the Excess Insurers and, together with Allianz, the Insurers), insured Guidant and four of its affiliates, Guidant Sales Corporation, Origin Medsystems, Inc., Advanced Cardiovascular Systems, Inc., and EVT (collectively the Affiliates and, together with Guidant, the Policyholders).\nThis litigation involves two distinct policy periods. The first policy period is from September 1, 2000, to September 1, 2001 (Year One). In July 2000, the Policyholders provided Allianz with a completed application for Year One coverage. After receiving and approving the application, Allianz, the first-layer carrier, issued a \u201cclaims made\u201d commercial umbrella liability insurance policy. The policy provided limits of coverage of $25 million per occurrence and $25 million in the aggregate for claims in excess of a self-insured retention (SIR) of $5 million per occurrence and $8 million in the aggregate. Subsequent layers of Year One coverage were provided by Gerling, AISLIC, Lumbermens, and Westchester.\nAllianz later issued a policy providing coverage to the Policyholders for the second policy period, from September 1, 2001, to September 1, 2002 (Year Two). This policy provided limits of coverage of $25 million per occurrence and $25 million in the aggregate for claims in excess of an SIR of $5 million per occurrence and $10 million in the aggregate. The Excess Insurers issued various one-year policies in excess of the Allianz policy for Year Two. During both Year One and Year Two, the policies issued by the Excess Insurers \u201cfollowed form\u201d to the Allianz policies, that is, the Excess Insurers\u2019 policies adopted virtually the same terms and conditions as the Allianz policies. The issues presented in this appeal involve coverage issued by the Insurers to the Policyholders for Year One.\nC. The Batch Clause\nThe Allianz policies contain, and the non-Allianz policies incorporate, the following \u201cBatch Clause,\u201d which is the focus of the instant litigation:\n\u201cIt is agreed that the policy section, Definitions, (6) \u2018Occurrence\u2019, with respect to \u2018products-completed operations hazard\u2019 is amended to include the following!!]\nThe term \u2018batch\u2019 means all products which have the same known or suspected defect or deficiency which is identified by the same advisory memorandum!!]\nThe term \u2018advisory memorandum\u2019 is any communication issued by you to inform health professionals or other appropriate persons or firms of a risk of \u2018bodily injury\u2019 or \u2018property damage\u2019 from a product in use[.]\nCoverage does not apply to any loss, claim, or \u2018suit\u2019 which arises out of a defect or deficiency which was known or suspected prior to the retroactive date shown in this policy!!]\nWhen this endorsement is attached to your policy, all losses arising from a single \u2018batch\u2019 of your product will be considered to be one \u2018occurrence!!]\u2019 Therefore, when multiple losses are considered to be one \u2018occurrence\u2019 you must only meet a single \u2018self-insured retention\u2019 amount!!] Likewise, our limit of liability due to \u2018bodily injury\u2019 and \u2018property damage\u2019 is limited to that of a single \u2018occurrence!!]\u2019\nAll claims made by persons or organization [sic] seeking damages because of \u2018bodily injury\u2019 or \u2018property damage\u2019 arising out of one batch will be deemed to have been made at the time the first of those claims is made against you[.]\u201d\nD. The Recall\nSoon after the Ancure Device was approved by the FDA, EVT became aware of various malfunctions in the delivery catheter that was used to insert the graft. Some of these malfunctions resulted in the delivery system becoming improperly lodged in patients\u2019 bodies, often requiring the removal of the delivery system by traditional open surgical repair. In response to these problems with the delivery system, some EVT sales representatives developed a procedure to break or cut the handle of the delivery system when it became lodged and could not be removed without resorting to traditional open surgical repair. This procedure, which became known as the \u201cHandle-Breaking Technique,\u201d was not presented to the FDA for approval.\nOn March 16, 2001, Guidant issued a press release stating that it was voluntarily halting the production and sale of the Ancure Device. According to the press release, this action was taken \u201cas a result of Guidant\u2019s identification of certain deficiencies in the company\u2019s ANCURE-related regulatory processes and communications with the [FDA].\u201d The press release explained that these deficiencies \u201care limited to *** regulatory issues associated with the deployment system of the product\u201d and that patients already implanted with the Ancure Device \u201care not affected by this action.\u201d At the time of the recall, more than 7,600 devices had already been sold. Guidant followed up the press release with three \u201cDear Doctor\u201d letters. Those letters were issued on March 21, 2001, March 31, 2001, and May 2, 2001.\nMeanwhile, the FDA initiated an investigation into EVT regarding its failure to make certain disclosures about the performance of the Ancure Device. In 2003, the federal government filed criminal charges and a civil action against EVT for failing to report problems with the Ancure Device. On June 12, 2003, EVT pleaded guilty to 10 charges, including misbranding and making false statements to government regulators. As a result of the plea agreement, EVT paid the federal government $92.4 million, which included a forfeiture of $10.9 million, a criminal fine of $32.5 million, and a civil settlement of $49 million.\nE. The Underlying Product Liability Claims\nAfter the Insurers\u2019 policies took effect on September 1, 2000, the Policyholders began to receive product liability claims involving the Ancure Device. For purposes of the coverage issue presented under the claims-made policies at issue here, the underlying Ancure claims fall into three categories: claims made in Year One, claims made in Year Two, and claims made after the termination of the Year Two policies.\n1. Claims Made in Year One\nTwo Ancure claims were made during Year One \u2014 the Carter claim and the Krupa claim. In handwritten letters dated March 9, 2001, and April 7, 2001, Harry Carter alleged that the Ancure Device had failed to \u201cstay deployed properly when inserted into [his] aorta and left and right femoral iliac artery.\u201d Carter further alleged that \u201cthe right branch closed up, shutting off blood flow through the right iliac artery\u201d and that \u201ca second operation was necessary to correct the condition.\u201d Guidant settled the Carter claim for $10,000 prior to litigation.\nIn a letter dated June 14, 2001, Ray Krupa complained that the Ancure Device was not accurately labeled in that it was \u201capproximately 4 cm shorter than the packaging information\u201d indicated. As a result of this alleged defect, Krupa stated, he had been required to undergo open-repair surgery. The Krupa claim was settled prior to litigation for $200,000.\n2. Claims Made in Year Two\nDuring Year Two, between 14 and 17 more Ancure claims were made. All of the Year Two claims have been resolved.\n3. Claims Made After the Termination of the Year Two Policies\nHundreds more Ancure claims were made following the conclusion of Year Two on September 1, 2002. Some of these claims have been resolved while others are pending in court or the subject of tolling agreements.\nG. The Illinois and Indiana Lawsuits\nThis coverage litigation commenced on November 6, 2003, when Allianz filed a complaint in the circuit court of Du Page County, Illinois, against Guidant, seeking, inter alia, a declaration that the \u201cpolicies issued to Guidant do not provide coverage for claims, losses, or liabilities related to the Ancure Device.\u201d All of the Excess Insurers and the Affiliates were later added. Thereafter, the Insurers filed a consolidated complaint against the Policyholders. Two days after Allianz sued Guidant in Illinois, the Policyholders filed a separate coverage action in Marion County, Indiana, against the Insurers. In their complaint, the Policyholders alleged that the Insurers had breached their duties to defend and indemnify the Policyholders for losses stemming from the Ancure Device and sought a declaration that they are entitled to coverage for the Ancure claims.\nH. The Summary Judgment Rulings in Illinois\nOn March 8, 2006, the Insurers filed a motion for partial summary judgment in the Illinois action, arguing that the insurance policies in effect during Year One do not afford coverage for any Ancure claims. Specifically, the Insurers argued that (1) the Policyholders had not established coverage for Year One, because the Ancure claims actually made during that period do not exceed the applicable SIR, and (2) the Batch Clause had not been triggered, so losses on claims made after Year One could not be aggregated with those actually made in Year One to exhaust the SIR for that year. The Policyholders opposed the motion and filed a cross-motion for partial summary judgment on the ground that the Batch Clause was indeed triggered in Year One.\nOn June 12, 2006, the Illinois court granted the Insurers\u2019 motion for partial summary judgment regarding Year One coverage and denied the Policyholders\u2019 cross-motion for partial summary judgment (the Illinois Year One Ruling). The court agreed with the Insurers that the losses associated with the two Ancure claims made during Year One do not exceed the applicable SIR. The court then rejected the Policyholders\u2019 argument that the Batch Clause allowed them to aggregate all Ancure claims regardless of whether those claims arose out of \u201cthe same known or suspected defect or deficiency.\u201d Instead, the court agreed with the Insurers that the only reasonable interpretation of the Batch Clause is that, for claims to be aggregated, those claims must involve persons seeking damages arising out of products that have the same defect or deficiency. As the court stated:\n\u201cI think if you apply the rules of English grammar to the definition of batch, one would reach the inescapable conclusion that the clause \u2018which have the same known or suspected defect or deficiency\u2019 modifies the word batch, and the known or suspected defect or deficiency is further modified by the clause which is identified by the same advisory memorandum.\nI believe that applying these rules of English grammar one is left with the inescapable conclusion that batch refers to all products of the same type which have the same known or suspected defect or deficiency, and not all products of that same type, regardless of whatever deficiency or defect it noted.\nI think the [Insurers\u2019] interpretation of the batch clause is the correct one under rules of common sense and rules of English grammar and rules giving words their ordinary meaning.\u201d\nOn July 5, 2006, the Policyholders moved for reconsideration of the Illinois Year One Ruling. This motion was denied on August 1, 2006. At the time it was entered, the Illinois Year One Ruling did not include language that it was enforceable or appealable, and none of the parties requested the inclusion of such language. See 210 Ill. 2d R. 304(a) (providing that \u201c[i]f multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both\u201d).\nOn August 28, 2006, the Insurers moved for summary judgment regarding the extent of their coverage obligation for the Year Two policy period. In their motion, the Insurers argued that there is no coverage under the Year Two policies because: (1) the Policyholders\u2019 losses in Year Two do not exceed the applicable SIR; (2) the \u201cDear Doctor\u201d letters do not constitute \u201cadvisory memorand[a]\u201d as that term is defined in the Batch Clause; and (3) the \u201cDear Doctor\u201d letters do not warn about the defects alleged in any of the claims made in Year Two. On March 2, 2007, the Illinois court denied the Insurers\u2019 motion for partial summary judgment regarding Year Two coverage (the Illinois Year Two Ruling). The court found that there were genuine issues of material fact regarding (1) whether the losses incurred by the Policyholders with respect to claims made in Year Two exceeded the applicable SIR; and (2) whether the \u201cDear Doctor\u201d letters constituted \u201cadvisory memorand[a]\u201d under the Batch Clause. The court also found that, unlike with respect to the Illinois Year One Ruling, Guidant introduced evidence that potentially showed that the Batch Clause applied to aggregate claims made in Year Two with claims made in subsequent years.\nI. The Summary Judgment Ruling in Indiana\nOn September 26, 2006, Guidant filed a motion for partial summary judgment in the Indiana action, seeking a declaration that Allianz had a duty to defend it on the underlying Ancure claims and that Allianz breached its duty by failing to do so. The Policyholders contended that, contrary to the analysis in the Illinois Year One Ruling, the Batch Clause had been triggered in Year One, thereby giving rise to a duty to defend under Allianz\u2019s primary policy. All of the Insurers contested the Year One coverage issue on the merits. Moreover, they filed their own motion for partial summary judgment on the Year One coverage issue, essentially reiterating the arguments made in Illinois.\nOn March 23, 2007, the Indiana court issued two separate orders. In one of the orders, the court denied the Insurers\u2019 motion for partial summary judgment (the Indiana Batch Clause Order), stating in relevant part:\n\u201cThe Court finds as a matter of law based upon the uncontroverted material facts that coverage for at least some Ancure claims was triggered in Year 1 by operation of the Batch Clause.\n* * *\nFirst, the Court finds that the Batch Clause provides coverage for claims arising from a batch of products, regardless of whether the claims for which coverage is sought allege the same or different product \u2018defects or deficiencies.\u2019 *** The Policyholders have identified a batch of pre-recall Ancure devices. The Policyholders have also shown through uncontroverted evidence that the $5 million per occurrence SIR applicable in Year 1 has been exhausted as to claims arising from that batch of products.\n* * *\nSecond, and in the alternative, even if the Court did not accept the Policyholders [sic] reasonable interpretation of the language of the Batch Clause, and then found the clause to be ambiguous *** such ambiguity *** would be construed against the Insurers and in favor of coverage.\n$ $ $\nThird, and also in the alternative, the Insurers\u2019 motion must be denied in all events, because the Policyholders have raised genuine issues of material fact as to whether one or more \u2018batches\u2019 (as the Insurers construe the term) existed, or may yet exist, that would trigger coverage for the Year 1 claims even under the Insurers\u2019 reading of the Batch Clause.\u201d\nThe Indiana court acknowledged the contrary holding in the Illinois Year One Ruling, but stated that it was \u201cunable to concur in [the Illinois court\u2019s] construction of the Batch Clause.\u201d The Indiana Batch Clause Order was not certified as a final and appealable order by the Indiana court. See Indiana Trial Rules 54(B), 56(C). Moreover, the Insurers did not seek such certification and they did not appeal the ruling.\nIn the other order entered on March 23, 2007, the Indiana court granted partial summary judgment in the Policyholders\u2019 favor on the issue of Allianz\u2019s duty to defend (the Indiana Duty-to-Defend Order). The court based its decision on the \u201cmere potential for coverage\u201d and \u201cpotential *** exhaustion of the SIR.\u201d The court stated that it \u201cneed not consider *** the Batch Clause *** or the SIR\u201d in reaching its decision. Despite this statement, a footnote in the Indiana Duty-to-Defend Order purports to incorporate by reference the Indiana Batch Clause Order. Furthermore, the court found \u201cno just reason for delay\u201d and certified the Indiana Duty-to-Defend Order such that it could be immediately appealed. See Indiana Trial Rules 54(B), 56(C). On April 19, 2007, the Insurers appealed the Indiana Duty-to-Defend Order.\nJ. Further Proceedings In Illinois\nMeanwhile, on April 30, 2007, the Insurers filed a motion for a finding pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), that the Illinois Year One Ruling was enforceable and appealable. In its motion, the Insurers argued that, because of the Illinois Year Two Ruling, which found that factual issues regarding coverage under Year Two precluded summary judgment, there was no longer a valid reason for delaying an appeal on the Illinois court\u2019s finding as a matter of law that there was no coverage under Year One. The Policyholders opposed the request, and, on May 23, 2007, they filed a motion to reconsider, asking the court for the second time to vacate the Illinois Year One Ruling. The Policyholders argued that, under the full faith and credit clause of the United States Constitution (U.S. Const., art. I\\( \u00a71), Indiana\u2019s subsequent grant of partial summary judgment to the Policyholders in its Duty-to-Defend Order, which \u201cexpressly incorporated the *** findings and conclusions\u201d of the Indiana Batch Clause Order, was entitled to collateral-estoppel effect with respect to the Illinois Year One Ruling. The Insurers objected to the Policyholders\u2019 request. They contended that the Indiana Duty-to-Defend Order was not entitled to collateral-estoppel effect, because it was entered nine months after the Illinois Year One Ruling and it did not rely on an interpretation of the Batch Clause.\nOn July 11, 2007, the Illinois court heard oral argument on both the Insurers\u2019 motion for a Rule 304(a) finding and the Policyholders\u2019 second motion to reconsider the Illinois Year One Ruling. The court denied the Policyholders\u2019 motion to reconsider, stating:\n\u201cI think this entire argument displays a fundamental misapplication of the doctrine of collateral estoppel. Collateral estoppel relates to application of a prior judgment to pending litigation. There is absolutely nothing in the doctrine of collateral estoppel that would require this Court to go back and vacate a prior order that had been entered as a result of a subsequent decision in a sister state.\nLeaving aside the issue of whether [the Indiana Duty-to-Defend 0]rder addressed the [SIR] or the Batch Clause, which I don\u2019t believe it did by its expressed terms, I think that this Court is not required to reconsider a prior ruling on the basis of what [the Indiana court] may have decided in a subsequent action, so for that basis I\u2019m going to deny the motion to reconsider.\u201d\nThe court also granted the Insurers\u2019 Rule 304(a) motion, finding that \u201cthere is no just reason to delay enforcement or appeal\u201d of the Illinois Year One Ruling. The Policyholders then filed the instant appeal.\nK. Decision of the Court of Appeals of Indiana\nOn April 17, 2008, after the parties submitted their briefs to this court, the Indiana Court of Appeals issued an opinion reversing the Duty-to-Defend Order entered by the Indiana trial court. Allianz Insurance Co. v. Guidant Corp., 884 N.E.2d 405 (Ind. App. 2008). The Indiana Court of Appeals held that the trial court erred in concluding that the Policyholders were required to establish only the \u201cpotential,\u201d rather than the actual, exhaustion of the SIR to trigger the duty to defend. Allianz Insurance Co., 884 N.E.2d at 420. The court then stated:\n\u201cAlthough the trial court\u2019s analysis was erroneous, we may affirm summary judgment if it is sustainable on any theory or basis found in the record. [Citation.] The only way in which summary judgment can be properly granted in the Policyholders\u2019 favor on their claim for breach of the duty to defend is if we find that they did, in fact, establish that the Batch Clause was triggered as a matter of law and there are no questions of fact regarding the exhaustion of the SIR.\u201d Allianz Insurance Co., 884 N.E.2d at 420.\nSince the Policyholders conceded that the only two Ancure claims made during Year One were insufficient to exhaust the SIR, the court considered whether the Batch Clause had been triggered.\nUltimately, the reviewing court found that the Batch Clause had not been triggered, because the \u201cDear Doctor\u201d letters relied upon by the Policyholders to activate the Batch Clause did not qualify as \u201cadvisory memorand[a]\u201d as that term is defined in the insurance policies. Allianz Insurance Co., 884 N.E.2d at 421-22. The court explained:\n\u201cRather than informing health professionals of a risk of bodily injury stemming from the Ancure Device, all of the letters sought to do the opposite; namely, they sought to assure the physician community that, notwithstanding regulatory and communication deficiencies, the product itself was safe and effective.\u201d Allianz Insurance Co., 884 N.E.2d at 422.\nBased on this finding, the court determined that the Batch Clause could not have been triggered, the SIR could not have been exhausted, and the Insurers had no duty to defend the Year One claims. Allianz Insurance Co., 884 N.E.2d at 422-23. The court also concluded that, \u201cfor a group of products to qualify as a batch, they must share the same defect or deficiency.\u201d Allianz Insurance Co., 884 N.E.2d at 422 n.9. The court found no evidence of record \u201cestablishing that the claims sought to be aggregated by the Policyholders are based on products that share the same defect or deficiency.\u201d Allianz Insurance Co., 884 N.E.2d at 422 n.9. The Policyholders have since asked the Indiana Supreme Court to review the decision of the Indiana Court of Appeals.\nII. ANALYSIS\nA. Full Faith and Credit\nOn appeal, the Policyholders contend that we need not even reach the merits of the Illinois Year One Ruling. According to the Policyholders, pursuant to the full faith and credit clause of the United States Constitution (U.S. Const., art. iy \u00a71), the Indiana trial court\u2019s \u201cjudgment\u201d has collateral-estoppel effect as to the Illinois Year One Ruling. Initially, we address the Insurers\u2019 response that the Policyholders have forfeited this issue by failing to plead collateral estoppel. Collateral estoppel is an affirmative defense. Midwest Physician Group, Ltd. v. Department of Revenue, 304 Ill. App. 3d 939, 952 (1999). Generally, to avoid surprise to the opposing party, an affirmative defense must be set out in a party\u2019s answer to a complaint or it will be considered forfeited. Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill. App. 3d 334, 376 (2008). In this case, however, the Policyholders\u2019 answer was filed long before March 23, 2007, when the Indiana orders giving rise to the claim of collateral estoppel were entered. Thus, the Policyholders could not have pleaded the affirmative defense at the time they filed their answer to the Insurers\u2019 complaint. See Tarzian v. West Bend Mutual Fire Insurance Co., 74 Ill. App. 2d 314, 324 (1966) (holding that affirmative defense that arose immediately prior to trial is available without pleading). We also find that the element of \u201csurprise\u201d is absent here. The Insurers were parties to the suit in Indiana, and they do not dispute that they participated in the Indiana action. In fact, they appealed the Indiana Duty-to-Defend Order. Accordingly, we decline to find forfeiture and we address the merits of the Policyholders\u2019 claim of collateral estoppel.\nThe Policyholders assert that, under the doctrine of collateral estoppel, the Indiana \u201cjudgment\u201d was entitled to preclusive effect in Illinois on the question whether the Batch Clause was triggered in Year One and the SIR thereby satisfied. The Policyholders acknowledge that the Insurers tendered the Batch-Clause-interpretation issue to the Illinois court first and that the Illinois court issued a ruling in the Insurers\u2019 favor before the Indiana court issued its decisions. However, they assert that the Insurers did not obtain a final ruling from the Illinois court on the matter until after the Indiana court entered a final judgment resolving the same issue against the Insurers. Thus, they reason, the Indiana judgment must control over the Illinois Year One Ruling, which, although entered earlier, was not final when the Indiana judgment was entered. The Policyholders ask us to vacate the Illinois Year One Ruling pending the conclusion of appellate proceedings in Indiana. The Insurers respond that neither of the two orders entered by the Indiana court on March 23, 2007, precludes consideration of the policy-interpretation issue presented here. They point out that, although the Indiana Duty-to-Defend Order contained language indicating that it was final and appealable, that order expressly declined to rely on the Batch Clause for support. The Insurers further note that, while the Indiana Batch Clause Order did address the policy-interpretation issue, that order is not final and appealable.\nCollateral estoppel, also referred to as issue preclusion, is an equitable doctrine of judicial origin created to prevent relitigation of previously adjudicated claims. Ballweg v. City of Springfield, 114 Ill. 2d 107, 113 (1986); see also Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 77 (2001); Tofany v. NBS Imaging Systems, Inc., 616 N.E.2d 1034, 1037 (Ind. 1993) (\u201cGenerally, collateral estoppel operates to bar a subsequent re-litigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in the subsequent lawsuit\u201d); Eichenberger v. Eichenberger, 743 N.E.2d 370, 374 (Ind. App. 2001) (\u201cIssue preclusion bars subsequent relitigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in a subsequent action\u201d). The doctrine is founded upon the principle of judicial economy. Ballweg, 114 Ill. 2d at 113; Tofany, 616 N.E.2d at 1039 (\u201cCollateral estoppel promotes judicial economy; in particular, it reduces the amount of court time devoted to retrying previously litigated issues\u201d). The full faith and credit clause of the United States Constitution extends the doctrine of collateral estoppel to judgments entered in foreign states. U.S. Const., art. iy \u00a71 (\u201cFull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State\u201d); see also In re Liquidation of Legion Indemnity Corp., 373 Ill. App. 3d 969, 974 (2007) (noting that the full faith and credit clause extends doctrine of res judicata to judgments entered in other states); Raikos v. Nehring, 527 N.E.2d 1141, 1146 (Ind. App. 1988) (considering whether the full faith and credit clause applied with regard to Illinois judgment and claim of issue preclusion).\nTraditionally, there are three threshold requirements for the application of collateral estoppel. Gumma v. White, 216 Ill. 2d 23, 38 (2005); Illinois Health Maintenance Organization Guaranty Ass\u2019n v. Department of Insurance, 372 Ill. App. 3d 24, 35 (2007); In re C.M., 675 N.E.2d 1134, 1137 (Ind. App. 1997). First, the issue decided in the prior adjudication must be identical to the issue presented in the suit in question. Gumma, 216 Ill. 2d at 38; Bojrab v. John Carr Agency, 597 N.E.2d 376, 379 (Ind. App. 1992). Second, there must have been a final determination on the merits in the prior adjudication by a court of competent jurisdiction. LaSalle Bank National Ass\u2019n v. Village of Bull Valley, 355 Ill. App. 3d 629, 635 (2005); In re C.M0., 675 N.E.2d at 1137. Finally, the party against whom the estoppel is asserted must have been a party to or in privity with a party to the prior adjudication. Gumma, 216 Ill. 2d at 38; In re C.M., 675 N.E.2d at 1137. Even if the threshold requirements are established, the doctrine\u2019s application depends on certain other circumstances. See American Family Mutual Insurance Co. v. Savickas, 193 Ill. 2d 378, 388 (2000) (\u201cEven when the threshold requirements are satisfied, the doctrine should not be applied unless it is clear that no unfairness will result to the party sought to be estopped\u201d); Reising v. Guardianship of Reising, 852 N.E.2d 644, 649 (Ind. App. 2006) (noting that, once threshold elements of collateral estoppel are met, the court must consider whether the party against whom the judgment is pled had a full and fair opportunity to litigate the issue in previous litigation and whether it would be otherwise unfair under the circumstances of the particular case to apply collateral estoppel); In re C.M., 675 N.E.2d at 1137 (same).\nAlthough the elements of collateral estoppel are essentially identical under both Illinois and Indiana law, those elements are analyzed differently in each state. For this reason, the parties dispute whether Illinois or Indiana law should apply to our collateral-estoppel analysis. The parties rely on conflicting rulings regarding whether the forum state may apply its own rules of collateral estoppel when deciding the effect of a foreign judgment. Compare Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565 (2000) (applying Missouri law in determining whether Illinois claim is barred as res judicata by a Missouri court judgment), with Finley v. Kesling, 105 Ill. App. 3d 1, 7 (1982) (\u201c[I]t has been recognized that the forum [sjtate may apply its own rules of collateral estoppel\u201d when deciding the effect of a foreign judgment). We need not resolve this dispute, however, for we reach the same result under the law of either state. We address the issue under Illinois law first.\nIn Illinois, the applicability of the doctrine of collateral estoppel is a question of law, which we review de novo. In re A.W., 231 Ill. 2d 92, 99 (2008). Our supreme court has held that, for the purpose of applying the doctrine of collateral estoppel, \u201cfinality requires that the potential for appellate review must have been exhausted.\u201d Ballweg, 114 Ill. 2d at 113. In this case, the Insurers appealed the Indiana Duty-to-Defend Order to the Indiana Court of Appeals. After the parties filed their briefs in this cause, the Indiana Court of Appeals issued a decision reversing the judgment of the trial court, remanding the cause, and denying the Policyholders\u2019 request for rehearing. Allianz Insurance Co., 884 N.E.2d 405. The Policyholders then filed a petition to transfer the cause to the Indiana Supreme Court. That court has yet to rule on the petition. Accordingly, under Illinois law, the doctrine of collateral estoppel would not apply, because the Indiana Duty-to-Defend Order, which purports to incorporate the Indiana Batch Clause Order, is not yet final.\nThe same result follows under Indiana law, albeit for a different reason. Under Indiana law, whether one judgment has collateralestoppel effect as to a second judgment is also a question of law subject to de novo review. See Kieler v. C.A.T., 616 N.E.2d 34, 36 (Ind. App. 1993). Applying Indiana law, we find that the Illinois court did not err in concluding that the Indiana court\u2019s orders of March 23, 2007, do not have collateral-estoppel effect as to the Illinois Year One Ruling.\nAt the outset, we note that throughout their briefs the Policyholders refer to an Indiana \u201cjudgment\u201d rendered on March 23, 2007. However, as set forth in the background section of this decision, the Indiana trial court actually entered two separate orders on March 23, 2007 \u2014 the Duty-to-Defend Order and the Batch Clause Order. This distinction is significant. Under Indiana law, for collateral estoppel to preclude the relitigation of an issue, that identical issue must have been decided expressly and finally in a prior judgment. Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 704 (Ind. App. 2005) (\u201cCollateral estoppel does not extend to matters that were not expressly adjudicated and can be inferred only by argument\u201d); Bojrab, 597 N.E.2d at 379. In this case, the issue that the Policyholders argue is precluded concerns the interpretation of the Batch Clause. The Indiana trial court did not decide this issue in any final judgment. Of the two orders entered by the Indiana trial court on March 23, 2007, only the Duty-to-Defend Order expressly states that there is no just reason for delay and expressly directs the entry of a final judgment. See Indiana Trial Rule 54(B) (\u201cA judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final\u201d); Indiana Trial Rule 56(C) (\u201cA summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties\u201d). However, the Indiana trial court declined to address the policy-interpretation issue in its Duty-to-Defend Order. The court found that the \u201cmere potential for coverage\u201d and the \u201cpotential *** exhaustion of the SIR\u201d were sufficient to trigger the duty to defend. Therefore, the court concluded that it did not have to address the Batch-Clause-interpretation issue, which was \u201cmore properly made in resisting the duty to indemnify.\u201d Thus, the Indiana court expressly stated that its judgment on Allianz\u2019s duty to defend did not turn on the Batch-Clause-interpretation issue.\nMoreover, while the Indiana Batch Clause Order did interpret the Batch Clause, that order did not include the language required by Indiana Trial Rules 54(B) and 56(C) to make the ruling final and appealable. We can conceive of no reason for the Indiana court to have issued two separate orders, designating one final and appealable and the other not, if it intended both of the orders to have conclusive effect. See Rabel v. Midwestern Electric, Inc., 550 N.E.2d 340, 341 (Ind. App. 1990) (\u201cOur rules specifically state a partial summary judgment order which does not include the required language *** \u2018shall be,\u2019 interlocutory\u201d).\nThe Policyholders insist that the Indiana Duty-to-Defend Order should be read to include findings on the Batch-Clause-interpretation issue because of footnotes in both of the Indiana orders. The footnote in the Duty-to-Defend Order provides:\n\u201cThe Court has simultaneously heard and considered the Insurers\u2019 Motion for Partial Summary Judgment re \u2018Year 1 Policies,\u2019 which was filed January 4, 2007. That motion and the instant motion present certain overlapping issues regarding coverage under Year 1 and the \u2018Batch Clause\u2019 contained in the subject policies. Accordingly, for the sake of completeness, all findings and conclusions set forth in the Order denying the Insurers\u2019 motion regarding Year 1 coverage are incorporated by reference in this [Duty-to-Defend] Order, and vice versa.\u201d\nSimilarly, the footnote in the Batch Clause Order states: We are not persuaded that the inclusion of these footnotes renders final the findings on the Batch-Clause-interpretation issue. The language of the footnotes makes clear that their inclusion was only to address certain unidentified \u201coverlapping\u201d issues. Equally clear is the notion that the interpretation of the Batch Clause is not one of those overlapping issues. The Indiana court made this plain when it stated in the Duty-to-Defend Order that it did not address the Batch-Clause-interpretation issue in its ruling on the Policyholders\u2019 motion for partial summary judgment as to Allianz\u2019s duty to defend.\n\u201cThe Court has simultaneously heard and considered the Policyholders\u2019 Motion for Partial Summary Judgment Re: Allianz Insurance Company\u2019s Duty to Defend, which was filed September 26, 2006. That motion and the instant motion present certain overlapping issues regarding coverage under Year 1 and the \u2018Batch Clause\u2019 contained in the subject policies. Accordingly, for the sake of completeness, all findings and conclusions set forth in the Order granting the Policyholders\u2019 Motion on the Duty to Defend are incorporated by reference in this [Batch Clause] Order, and vice versa.\u201d\nThe Policyholders also insist that the Indiana court could not have ruled on its motion for partial summary judgment regarding Allianz\u2019s duty to defend without interpreting the Batch Clause. In support of this position, the Policyholders cite language from the Indiana Duty-to-Defend Order indicating that Allianz\u2019s duty to defend arose \u201cupon the exhaustion of the SIR in August 2003.\u201d They also cite to case law for the proposition that a judgment is conclusive as to those matters that were necessary to reach the judgment, whether or not expressly set forth and regardless of whether the rendering court\u2019s stated reasons for its judgment are inconsistent or mistaken. Ultimately, we do not find this argument persuasive. Under Indiana law, \u201c[t]here is no estoppel where anything is left to conjecture as to what was necessarily involved and decided.\u201d Peterson v. Culver Educational Foundation, 402 N.E.2d 448, 461 (Ind. App. 1980); see also Indianapolis Downs, LLC, 834 N.E.2d at 704 (\u201cCollateral estoppel does not extend to matters that were not expressly adjudicated and can be inferred only by argument\u201d). Despite its inclusion of the statements that the Policyholders cite, the Indiana trial court expressly based its ruling on the \u201cpotential\u201d for coverage and therefore decided that it would not have to address the Batch-Clause-interpretation issue in making its duty-to-defend ruling. Thus, the Policyholders\u2019 attempt to avoid the Indiana court\u2019s own language is based purely on \u201cconjecture.\u201d\nMoreover, we fail to see how the principle behind collateral estoppel would be promoted by the doctrine\u2019s application in this case. The parties litigated the Batch-Clause-interpretation issue in Illinois prior to litigating the issue in Indiana. The Illinois court entered its Year One Ruling resolving the Batch-Clause-interpretation issue in the Insurers\u2019 favor prior to the date the Indiana court entered its Duty-to-Defend and Batch Clause Orders. The Illinois court also denied the Policyholders\u2019 initial motion for reconsideration of its Year One Ruling prior to the date the Indiana court entered its orders. In other words, under the procedural posture of this case, the parties did not \u201crelitigate\u201d the Batch-Clause-interpretation issue in Illinois after the Indiana court entered its orders. To the contrary, as the Indiana court itself recognized, the Batch-Clause-interpretation issue had already been litigated and decided in Illinois prior to the date the Indiana court entered its orders on March 23, 2007. Since the Batch-Clause-interpretation issue had been argued and decided in Illinois prior to the date the Indiana court entered the orders alleged to have preclusive effect, the principle underlying the doctrine of collateral estoppel \u2014 judicial economy \u2014 would not be served. In fact, all of the time and work devoted to this issue by the parties and the Illinois court would go for naught. See Freeman United Coal Mining Co. v. Office of Workers\u2019 Compensation Program, 20 F.3d 289, 294 (7th Cir. 1994) (noting that the purpose of collateral estoppel is to prevent relitigation of the same issues in a subsequent case and that the reasons for the doctrine are \u201chardly served\u201d where the effort of litigation has already been undertaken).\nIn sum, we conclude that the Indiana \u201cjudgment\u201d did not have collateral-estoppel effect with respect to the Illinois Year One Ruling. Under Illinois law, neither the Indiana Batch Clause Order nor the Indiana Duty-to-Defend Order is final, because the potential for appellate review has not been exhausted. Further, under Indiana law, the Indiana Batch Clause Order was not designated as final and appeal-able, and the Indiana Duty-to-Defend Order, which was so designated, expressly declined to consider the Batch-Clause-interpretation issue.\nB. Batch Clause\nWe now address the Policyholders\u2019 claim that the Illinois trial court erred in granting summary judgment in favor of the Insurers on the Batch-Clause-interpretation issue. \u201cThe construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court which are appropriate subjects for disposition by way of summary judgment.\u201d Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993). Summary judgment is appropriate where the pleadings, depositions, affidavits, and admissions on file, if any, reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Legion Insurance Co. v. Empire Fire & Marine Insurance Co., 354 Ill. App. 3d 699, 703 (2004). We review a grant of summary judgment de novo (Virginia Surety Co. v. Northern Insurance Co. of New York, 362 Ill. App. 3d 571, 573 (2005)) and may affirm on any basis in the record, irrespective of whether the trial court relied on that ground or whether its reasoning was correct (Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 641 (2002)).\nInsurance policies are interpreted in accordance with the principles of contract construction. Aurelius v. State Farm Fire & Casualty Co., 384 Ill. App. 3d 969, 973 (2008). The cardinal rule of contract construction is to ascertain and give effect to the intent of the parties. Aurelius, 384 Ill. App. 3d at 973. The best indication of the parties\u2019 intent is the language of the contract itself. Farmers Automobile Insurance Ass\u2019n v. Wroblewski, 382 Ill. App. 3d 688, 696 (2008). In construing an insurance policy, the contract must be read as a whole, giving meaning to all terms in the policy. Clarendon America Insurance Co. v. 69 West Washington Management, LLC, 374 Ill. App. 3d 580, 585 (2007). \u201cIf the words used in the policy are clear and unambiguous, they must be given their plain, ordinary, and popular meaning.\u201d Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). The fact that the parties disagree about the interpretation of a particular provision does not render the provision ambiguous. Liberty Mutual Fire Insurance Co. v. St. Paul Fire & Marine Insurance Co., 363 Ill. App. 3d 335, 341 (2005). Rather, a policy will be deemed ambiguous where its words are susceptible to more than one reasonable interpretation. Benedict v. Federal Kemper Life Assurance Co., 325 Ill. App. 3d 820, 824 (2001). A provision that is found to be ambiguous and that limits the insurer\u2019s liability will be construed in favor of the insured. Jones v. Country Mutual Insurance Co., 371 Ill. App. 3d 1096, 1099 (2007).\nUnder the claims-made policies at issue here, the only Ancure claims that could potentially implicate the Year One policies are those claims of which the Policyholders received written notice between September 1, 2000, and September 1, 2001. It is undisputed that the only two such claims were the Carter claim, which was resolved for $10,000, and the Krupa claim, which was resolved for $200,000. Standing alone, the two Year One claims do not exhaust the applicable SIR. As a result, the Policyholders attempt to exhaust the SIR by aggregating the Year One claims with claims made in later years pursuant to the Batch Clause.\nThe parties agree that whether aggregation is permissible under the terms of the policy turns on the last sentence of the Batch Clause. To place that sentence in context, we again reproduce the language of the Batch Clause in its entirety:\n\u201cIt is agreed that the policy section, Definitions, (6) \u2018Occurrence\u2019, with respect to \u2018products-completed operations hazard\u2019 is amended to include the following!):]\nThe term \u2018batch\u2019 means all products which have the same known or suspected defect or deficiency which is identified by the same advisory memorandum!).]\nThe term \u2018advisory memorandum\u2019 is any communication issued by you to inform health professionals or other appropriate persons or firms of a risk of \u2018bodily injury\u2019 or \u2018property damage\u2019 from a product in use[.]\nCoverage does not apply to any loss, claim, or \u2018suit\u2019 which arises out of a defect or deficiency which was known or suspected prior to the retroactive date shown in this policy[.]\nWhen this endorsement is attached to your policy, all losses arising from a single \u2018batch\u2019 of your product will be considered to be one \u2018occurrence!.]\u2019 Therefore, when multiple losses are considered to be one \u2018occurrence\u2019 you must only meet a single \u2018self-insured retention\u2019 amount!.] Likewise, our limit of liability due to \u2018bodily injury\u2019 and \u2018property damage\u2019 is limited to that of a single \u2018occurrence!.]\u2019\nAll claims made by persons or organization [sic] seeking damages because of \u2018bodily injury\u2019 or \u2018property damage\u2019 arising out of one batch will be deemed to have been made at the time the first of those claims is made against you[.]\u201d\nAfter reviewing the Batch Clause, we conclude that the trial court\u2019s ruling in favor of the Insurers was correct for three reasons. First, the trial court\u2019s interpretation of the insurance policy is supported by the plain and unambiguous language of the Batch Clause. Second, the \u201cDear Doctor\u201d letters relied upon by the Policyholders do not constitute \u201cadvisory memorand[a]\u201d as that term is defined in the Batch Clause. Third, to the extent that the \u201cDear Doctor\u201d letters constitute \u201cadvisory memorand[a],\u201d none of the Year One claims involves a defect or deficiency that is identified in any of the \u201cDear Doctor\u201d letters. We address each finding in turn.\nAccording to the Policyholders, the Batch Clause \u201cunambiguously \u2018batches\u2019 together products not lawsuits.\u201d (Emphasis in original.) The Policyholders contend that the Batch Clause aggregates \u201call claims arising out of a \u2018batch\u2019 of products suspected of having the same suspected defect.\u201d (Emphasis added.) Thus, the Policyholders assert, the court must \u201cdetermine if a product \u2018batch\u2019 exists without reference to the contents of any particular underlying claim.\u201d We conclude that the Policyholders\u2019 interpretation of the policy is not reasonable, because it ignores the plain and unambiguous language of the Batch Clause.\nThe Batch Clause allows a policyholder to aggregate \u201c[a]ll claims *** seeking damages because of \u2018bodily injury\u2019 or \u2018property damage\u2019 arising out of one batch.\u201d Therefore, determining whether claims made in different years may be aggregated requires a two-part inquiry. Initially, the particular \u201cbatch\u201d must be identified. The term \u201cbatch\u201d is defined by reference to a group of \u201cproducts.\u201d A \u201cbatch\u201d consists of a group of \u201call products which have the same known or suspected defect or deficiency which is identified by the same advisory memorandum.\u201d Thus, to qualify as a \u201cbatch,\u201d all products must share the same suspected defect or deficiency identified by the insured. See Allianz Insurance Co., 884 N.E.2d at 422 n.9. In asserting that a \u201cbatch\u201d consists of products \u201csuspected of having\u201d a defect, the Policyholders read into the definition language that does not appear.\nThe Policyholders\u2019 claim, that the court must determine if a product \u201cbatch\u201d exists without reference to the contents of any particular underlying claim, ignores the second part of the inquiry, which requires an examination of the last sentence of the Batch Clause. The only claims that may be aggregated are those \u201cseeking damages because of \u2018bodily injury\u2019 or \u2018property damage\u2019 arising out of\u2019 the relevant \u201cbatch,\u201d the definition of which requires products having the same known or suspected defect identified by the insured in the same advisory memorandum. Thus, there must be a causal nexus between the claims and the product defect. Without commonality of defect, or a connection between that defect and an advisory memorandum, a claim cannot form the foundation of a \u201cbatch.\u201d For this reason, we reject the Policyholders\u2019 claim that, as long as multiple losses involve a particular product with any defect at all, the losses may be aggregated, regardless of whether the claims at issue involve a common product defect. In so arguing, the Policyholders ignore the principle that a policy is to be read as a whole, giving meaning to all its terms. Clarendon America Insurance Co., 374 Ill. App. 3d at 585. In particular, the Policyholders repeatedly disregard the fact that to be aggregated the claims must be \u201cseeking damages because of \u2018bodily injury\u2019 or \u2018property damage\u2019 arising out of\u2019 products with the same known or suspected defect or deficiency. (Emphases added.)\nThe Policyholders also claim that certain \u201crules of grammar\u201d support their reading of the Batch Clause or, at the very least, the notion that their reading of the policy is reasonable. First, the Policyholders cite to a \u201cproximity to modifier\u201d rule. See W Strunk & E. White, The Elements of Style 30 (3d ed. 1979) (\u201cModifiers should come, if possible, next to the word they modify\u201d). The Policyholders\u2019 reliance on this rule is unpersuasive. The Policyholders\u2019 argument revolves around replacing the term \u201cbatch\u201d in the last sentence of the Batch Clause with that term\u2019s definition, so that it reads \u201c[a] 11 claims made *** because of \u2018bodily injury\u2019 *** arising out of all products which have the same known or suspected defect.\u201d (Emphasis in original.) The Policyholders then parse the highlighted language, claiming that certain phrases were intended to modify particular phrases appearing before them. Thus, for instance, the Policyholders claim that the clause \u201cthe same known or suspected defect\u201d modifies the clause \u201call products which have.\u201d As the Insurers point out, however, this exercise ignores the fact that this entire section of the Batch Clause collectively modifies and limits the \u201cclaims\u201d that are \u201cbatched,\u201d i.e., \u201cclaims *** seeking damages because of \u2018bodily injury\u2019 *** arising out of\u2019 products with the defect identified in the advisory memorandum.\nThe Policyholders also rely on an \u201canti-surplusage\u201d rule, arguing that the Insurers\u2019 interpretation of the Batch Clause effectively deletes the clause \u201call products which have\u201d from the provision. However, it is the Policyholders\u2019 interpretation that renders meaningless key portions of the Batch Clause by urging an interpretation that considers the phrase \u201call products\u201d in a vacuum while ignoring that these referenced products must share the same known or suspected defect or deficiency and that this defect or deficiency must exist in all claims sought to be aggregated. The Policyholders\u2019 failure to consider the entire context of the Batch Clause results in their flawed interpretation that \u201call products\u201d must be batched even if the claims are brought because of different defects in those products.\nThe Policyholders further argue that \u201ccommon sense\u201d shows that their reading of the Batch Clause is reasonable because, in other factual circumstances, that reading could reduce rather than increase the Insurers\u2019 liability. However, hypothetical factual situations are simply irrelevant, especially where, as here, the trial court\u2019s interpretation of the provision at issue is supported by the provision\u2019s plain and unambiguous language.\nApplying the foregoing interpretation of the Batch Clause to the facts of this case reveals that the claims made in Year One did not seek damages because of bodily injury arising out of products having the same defect as in claims made in subsequent years. The only two claims made in Year One were the Carter and the Krupa claims. Before the trial court, counsel for the Policyholders opined that the \u201cbulk\u201d of Ancure claims made after Year One related to bodily injury resulting from a defect in the Ancure delivery system:\n\u201c[The Ancure Device] that\u2019s implanted in the aorta, right about there, through a very intricate process, as you can imagine.\nIt\u2019s \u2014 when implanted, it\u2019s been a highly successful product, and it\u2019s saved a lot of people\u2019s lives. The difficulty is that [sic] Guidant faces in the underlying cases is that it\u2019s very difficult to put one of those in, and that\u2019s what the case is really about.\u201d\nNeither the Carter claim nor the Krupa claim involved difficulties with the implantation of the Ancure Device. The Carter claim involved an allegation that the Ancure Device failed to remain deployed after the delivery process had been completed. The Krupa claim involved an allegation that the Ancure Device was four centimeters shorter than the packaging indicated. In fact, the Policyholders acknowledged that the Ancure claims made in Year One and those made in subsequent years did not seek damages because of bodily injury arising out of products sharing the same defect. Counsel for the Policyholders told the trial court that he was \u201cnot sure what the Carter claim involved\u201d because \u201cit\u2019s not material.\u201d Counsel also represented that, while there were \u201cisolated other packaging issues in some of the claims that were made following the lapse of the Allianz policy,\u201d these claims \u201cwere not the bulk of the claims we\u2019re talking about.\u201d Because neither of the two claims made in Year One sought damages because of bodily injury related to a deployment failure occurring during the implantation of the Ancure Device, the Policyholders\u2019 attempt to aggregate the Year One claims with claims made after Year One must fail.\nEven if we had found the Policyholders\u2019 interpretation of the Batch Clause to be reasonable, we would still affirm the trial court for, contrary to the Policyholders\u2019 position, the \u201cDear Doctor\u201d letters do not constitute \u201cadvisory memorand[a]\u201d as that term is defined in the Batch Clause. The Batch Clause defines an \u201cadvisory memorandum\u201d as \u201cany communication issued by you to inform health professionals or other appropriate persons or firms of a risk of \u2018bodily harm\u2019 or \u2018property damage\u2019 from a product in use.\u201d In this case, the Policyholders rely on three \u201cDear Doctor\u201d letters as their \u201cadvisory memoranda.\u201d However, an examination of these documents reveals that none of them communicates \u201ca risk of \u2018bodily harm\u2019 or \u2018property damage\u2019 from a product in use.\u201d We examine each letter individually.\nThe first \u201cDear Doctor\u201d letter is dated March 21, 2001. It states in relevant part:\n\u201cOn Friday, March 16, [2001,] Guidant Corporation announced its decision to halt the marketing of the Ancure Endograft System and recall products in the field. This action is being taken as a result of Guidant\u2019s identification of certain deficiencies in its regulatory process and communications with [the] FDA. These deficiencies primarily relate to failures in communicating problems with the deployment of the endograft, not the graft itself. While Endovascular Solutions believes that the graft can be safely and effectively deployed with appropriate techniques, the company did not correctly communicate either to [the] FDA or the physician community how to address deployment problems with the device.\u201d (Emphasis added.)\nThe letter continues, \u201c[p]lease be assured that the Ancure Endograft implanted product is safe and effective; supported by extensive positive long-term data. These actions are NOT related to the performance of the Ancure Endograft.\u201d (Emphasis in original.) The letter also announced a \u201ccontrolled plan\u201d to allow physicians to continue to implant the Ancure Device, provided certain conditions are met.\nThe second \u201cDear Doctor\u201d letter is dated March 31, 2001. The second letter indicates that Guidant had been working closely with the FDA \u201cto review deficiencies primarily related to failures in communicating problems with the deployment of the graft.\u201d The letter further states:\n\u201cWhile we believe the graft can be safely and effectively deployed using appropriate techniques, the company did not correctly communicate either to [the] FDA or the physician community on how to address deployment problems with the device. Guidant does not believe these issues affect the graft itself.\u201d (Emphasis added.)\nThe letter also informs physicians that the FDA had agreed to continue the \u201ccontrolled plan.\u201d\nThe third and final \u201cDear Doctor\u201d letter is dated May 2, 2001. That letter attributes the recall to \u201cthe fact that [Guidant] had identified various deficiencies in our regulatory and quality systems during recent audits.\u201d The letter describes these \u201cregulatory and quality issues\u201d as follows:\n\u201c1) We made certain changes to improve the ANCURE System delivery system but did not submit those changes to [the] FDA for its approval prior to making the changes. While we believe that these changes improved the delivery system, we recognize and accept [the] FDA\u2019s position that these changes should have received FDA approval before implementation.\n2) We also did not report to [the] FDA field observations regarding deployment issues with the ANCURE System. These observations generally involved difficulties encountered during device deployment.\n3) We also should have updated the Instructions for Use (IFU) to include techniques to resolve intra-operative difficulties associated with the graft deployment.\n4) In addition, we found issues with certain of our internal systems including complaint handling, documentation, training and manufacturing systems.\u201d\nThe May 2, 2001, letter also references \u201crecent tests of the ANCURE System packaging.\u201d In this regard, the letter relates:\n\u201c[Guidant] discovered conflicting results in shelf life packaging tests. The packaging \u2018passed\u2019 some of the tests but did not pass others. Next, we performed a health hazard assessment on this packaging issue. We analyzed our database and found no reported cases where an ANCURE System device caused a patient infection. We also reviewed the literature for similar sterile products used in the operating room. Based on those reviews, we calculated the incremental risk of patient infection related to these packaging issues to be less than one in a million. Based on these findings, we do not believe that there is a safety issue relating to this packaging matter.\u201d\nIn closing, the May 2, 2001, letter assures physicians that \u201cthese issues do not affect the long-term safety or performance of this graft.\u201d\nWe find no language in any of these letters that is meant to communicate to health-care professionals a risk of bodily harm. The first two letters reference certain \u201cdeficiencies\u201d in Guidant\u2019s regulatory process and communications with the FDA. However, the letters also represent that the Ancure Device can be \u201csafely and effectively deployed\u201d regardless of these deficiencies. Indeed, despite the deficiencies in Guidant\u2019s regulatory process and communications with the FDA, the letters also describe a plan for continued implantation of the Ancure Device. Likewise, the May 2, 2001, letter does not communicate a risk of bodily harm. Although that letter references a \u201cpackaging issue\u201d resulting in \u201can incremental risk of patient infection,\u201d Guidant itself discounts this risk in the letter, calculating the risk \u201cto be less than one in a million\u201d and concluding that there is no safety issue related to the packaging matter.\nThe Policyholders also suggest that a \u201cTechnical Update on Deployment\u201d (Technical Update), which accompanies the March 21, 2001, letter and is referenced in the March 31, 2001, letter, advised of the requisite risk of bodily harm. The Technical Update includes a section titled \u201cADDITIONAL WARNINGS AND PRECAUTIONS.\u201d The Policyholders assert that \u201c[t]he only possible reason for such \u2018warnings and precautions\u2019 was a perceived risk of bodily injury.\u201d However, the Technical Update is merely a general update to the literature for the Ancure Device. Indeed, the letters that reference the Technical Update indicate that it is provided \u201cas a guide to additional deployment techniques for use in the procedure.\u201d The letters further suggest that the Technical Update was developed so that the FDA would agree, as part of the \u201ccontrolled plan,\u201d to allow physicians to continue to use the Ancure Device. Moreover, the updated procedures referenced in the Technical Update do not warn of a risk of bodily injury even if adherence to some of the procedures may ultimately affect a patient\u2019s blood flow. Accordingly, the Technical Update does not convert the \u201cDear Doctor\u201d letters into \u201cadvisory memorand[a].\u201d\nThe Policyholders query, if the \u201cDear Doctor\u201d letters were not written to inform doctors of a risk to their patients, what was their purpose? After a review of the letters it is evident that the purpose of the letters was to inform medical professionals of the controlled plan, to assure them of Guidant\u2019s belief that the Ancure Device remained safe and effective, and to advise them to continue with routine followups for those patients already implanted with the device.\nFinally, we point out that, even if we were to consider the \u201cDear Doctor\u201d letters \u201cadvisory memorand[a],\u201d we would still affirm the trial court\u2019s ruling. The Policyholders contend that the first two \u201cDear Doctor\u201d letters advise of risks of injury related to the implantation procedure while the third \u201cDear Doctor\u201d letter references an \u201cincremental risk\u201d of patient infection as a result of \u201cquality\u201d and \u201cpackaging\u201d issues. However, neither of the Year One claims involved these types of defects. As noted previously, the only two claims made during Year One were the Carter and Krupa claims. The Carter claim involved an allegation that the Ancure Device failed to remain deployed after the delivery process had been completed. The Krupa claim involved an allegation that the Ancure Device was four centimeters shorter than the packaging indicated. Accordingly, the Year One claims cannot be aggregated with claims made in later years to exhaust the applicable SIR.\nThe Policyholders suggest that it is irrelevant whether the claims made in Year One involved the defects identified in the advisory memoranda because, regardless of whether the claims alleged bodily injury because of those particular defects, all of the Ancure Devices shared these defects. This argument is based on a flawed interpretation of the Batch Clause and ignores the express requirement that the \u201csame known or suspected defect or deficiency [be] identified by the same advisory memorandum.\u201d (Emphasis added.) Accordingly, we reject this argument.\nIn sum, we conclude that the trial court\u2019s ruling granting summary judgment in favor of the Insurers was correct because the trial court\u2019s interpretation of the insurance policy is supported by the plain and unambiguous language of the Batch Clause, the \u201cDear Doctor\u201d letters relied upon by the Policyholders do not constitute \u201cadvisory memorand[a]\u201d as that term is defined in the Batch Clause, and the \u201cDear Doctor\u201d letters do not warn about defects at issue in the Year One claims.\nIII. CONCLUSION\nFor the reasons set forth above, we affirm the judgment of the circuit court of Du Page County.\nAffirmed.\nZENOFF, P.J., and HUTCHINSON, J., concur.\nThis is the third time that the parties have appeared before us. See Allianz Insurance Co. v. Guidant Corp., 373 Ill. App. 3d 652 (2007); Allianz Insurance Co. v. Guidant Corp., 355 Ill. App. 3d 721 (2005). The facts presented in this opinion are taken from those prior decisions in addition to the record on appeal.\nIn an order dated July 23, 2008, we granted unopposed motions to dismiss Zurich, Liberty, and Westchester as parties to this appeal.\nA \u201cclaims made\u201d insurance policy is \u201c[a]n agreement to indemnify against all claims made during a specified period, regardless of when the incidents that gave rise to the claims occurred.\u201d Black\u2019s Law Dictionary 809 (7th ed. 1999).\nAn SIR is defined as \u201c[t]he amount of an otherwise-covered loss that is not covered by an insurance policy and that [usually] must be paid before the insurer will pay benefits.\u201d Black\u2019s Law Dictionary 1365 (7th ed. 1999).\nThe parties dispute the number of claims made in Year Two. For purposes of this appeal, the dispute is not material.\nThe motion was directed only at Allianz, but the Excess Insurers opposed the motion, \u201cto dispute the Policyholders\u2019 interpretation of the Allianz Policy to which their policies follow form.\u201d\nSimilarly, a footnote in the Indiana Batch Clause Order purports to incorporate by reference the Indiana Duty-to-Defend Order. The text of both footnotes is set forth later in this opinion.\nThe same argument was the subject of a motion to bifurcate that accompanied the Policyholders\u2019 opening brief. We denied the motion to bifurcate on December 28, 2007.\nAs noted above, the Indiana Court of Appeals has since reversed the Indiana trial court. This ruling would seemingly render the Policyholders\u2019 collateral-estoppel argument moot, as the positions of both the Illinois and the Indiana courts would now be aligned. However, it is the Policyholders\u2019 position that the opinion of the Indiana Court of Appeals is not \u201ccertified and final,\u201d because they have petitioned the Indiana Supreme Court for transfer. Thus, they reason, the judgment of the Indiana trial court is still valid. See In re Big Raccoon Conservancy District, 363 N.E.2d 1004, 1009 (Ind. App. 1977) (\u201cA judgment is final pending appeal\u201d). Accordingly, we proceed under the notion that, despite the reviewing court\u2019s opinion, the Indiana trial court\u2019s decision remains valid until the Indiana Supreme Court either denies the petition to transfer or resolves the case after allowing the petition to transfer.\nOur finding that the Indiana Batch Clause Order is not final under Indiana law provides an alternate basis for a lack of finality under Illinois law.", "type": "majority", "author": "JUSTICE GROMETER" } ], "attorneys": [ "Mary Rose Alexander, of Latham & Watkins LLP, of Chicago, and Terry A. Ekl and Vincent C. Mancini, both of Ekl Williams PLLC, of Lisle, and G. Andrew Lundberg, of Latham & Watkins LLP, of Los Angeles, California, for appellants.", "Lazar P. Raynal and Geoffrey A. Vance, both of McDermott, Will & Emery, of Chicago, for appellee Allianz Insurance Company.", "Michael W. Morrison and Heather C. Sullivan, both of Tressler, Soderstrom, Maloney & Priess, LLfi of Chicago, for appellee Lumbermens Mutual Casualty Company.", "Ryan Holz, of Locke, Lord, Bissell & Liddell LLP, and Joseph A. Hinkhouse, Richard McDermott, and Sarah H. Dearing, all of Hinkhouse Williams Walsh LLP, both of Chicago, for appellee American International Specialty Lines Insurance Company.", "James K. Horstman and Mark A. Hooper, both of Cray, Huber, Horstman, Heil & VanAusdal LLC, of Chicago, for appellee Westchester Fire Insurance Company.", "J.C. Ditzler, of Cozen O\u2019Connor, of Seattle, Washington, for other appellees." ], "corrections": "", "head_matter": "ALLIANZ INSURANCE COMPANY et al., Plaintiffs-Appellees, v. GUIDANT CORPORATION et al., Defendants-Appellants.\nSecond District\nNo. 2 \u2014 07\u20140814\nOpinion filed December 29, 2008.\nMary Rose Alexander, of Latham & Watkins LLP, of Chicago, and Terry A. Ekl and Vincent C. Mancini, both of Ekl Williams PLLC, of Lisle, and G. Andrew Lundberg, of Latham & Watkins LLP, of Los Angeles, California, for appellants.\nLazar P. Raynal and Geoffrey A. Vance, both of McDermott, Will & Emery, of Chicago, for appellee Allianz Insurance Company.\nMichael W. Morrison and Heather C. Sullivan, both of Tressler, Soderstrom, Maloney & Priess, LLfi of Chicago, for appellee Lumbermens Mutual Casualty Company.\nRyan Holz, of Locke, Lord, Bissell & Liddell LLP, and Joseph A. Hinkhouse, Richard McDermott, and Sarah H. Dearing, all of Hinkhouse Williams Walsh LLP, both of Chicago, for appellee American International Specialty Lines Insurance Company.\nJames K. Horstman and Mark A. Hooper, both of Cray, Huber, Horstman, Heil & VanAusdal LLC, of Chicago, for appellee Westchester Fire Insurance Company.\nJ.C. Ditzler, of Cozen O\u2019Connor, of Seattle, Washington, for other appellees." }, "file_name": "1008-01", "first_page_order": 1024, "last_page_order": 1050 }