                       ILLINOIS OFFICIAL REPORTS
                                    Appellate Court




            Ware v. First Specialty Insurance Corp., 2013 IL App (1st) 113340




Appellate Court        JEAN WARE, as Personal Representative of the Estate of Kelly
Caption                McKinnel, Deceased; NATALIE BROUGHAM; REBECCA CHELIN;
                       JAMES CHIAPPETTA; AMY CHUMLEY; DERRICK CUSICK;
                       JONATHAN D’AUGUSTA; DAVID DERMENJIAN; ANJALEE
                       DESAI; BENJAMIN EISENBERG; JEREMY FARMER, as Personal
                       Representative of the Estate of Sam Farmer, Deceased; MIA
                       FITZGERALD, as Special Administrator of the Estate of Shea Fitzgerald,
                       Deceased; GILMORE S. HAYNIE, as Independent Administrator of the
                       Estate of Margaret G. Haynie, Deceased; SARAH HOFFMAN; DENNIS
                       E. HULL; ADAM HURDER; JORDAN HURDER; LYNDSIE
                       JACKSON; ROBERT V. JACKSON, as Special Administrator of the
                       Estate of John T. Jackson, Deceased; JENNIFER JOHNSON;
                       MUHAMMAD KARIMUDDIN, as Special Administrator of the Estate
                       of Muhammed Hameeduddin, Deceased; ALAN J. KLINGER;
                       KENNETH R. KORANDA, as Executor of the Estate of Robert A.
                       Koranda, Deceased; PHYLLIS M. KUMPF, as Administrator of the
                       Estate of Eric F. Kumpf, Deceased; JASON LEV; JENNIFER S. LEVIN;
                       MEGHAN R. LIMACHER; J. PATRICK LUPTON, as Personal
                       Representative of the Estate of Eileen Lupton, Deceased; MOLLY
                       NILAN; THOMAS J. O’CONNELL; SEAN O’DELL; ELIZABETH
                       PAGEL, as Special Administrator of the Estate of Kelly Pagel, Deceased;
                       WILLIAM PRIMACK; GEOFFREY C. RAPP; ALIBE ROBERTSON;
                       MELISSA SHAW; JAMES A. SHERIFF, as Independent Administrator
                       of the Estate of Katherine E. Sheriff, Deceased; BONNIE SORKIN, as
                       Special Administrator of the Estate of Julie Sorkin, Deceased; JAY
                       SORKIN, as Special Administrator of the Estate of Julie Sorkin,
                       Deceased; CULLAN STEFANIK; ALEXIS TESSLER; WHITNEY
                       TURNER; and HENRY J. WISCHERATH, SR., as Personal
                       Representative of the Estate of Henry J. Wischerath, Jr., a/k/a Jay
                       Wischerath, Deceased; Plaintiffs-Appellants, v. FIRST SPECIALTY
                       INSURANCE CORPORATION, Defendant-Appellee.
 District & No.            First District, Fifth Division
                           Docket No. 1-11-3340


Filed                      January 11, 2013


Held                       Defendant insurer was liable to the 42 plaintiffs killed and injured when
(Note: This syllabus       a three-story porch system on an apartment building collapsed, but that
constitutes no part of     liability was limited to the $1 million per occurrence limit, not the
the opinion of the court   aggregate limit of $2 million, since the collapse and the resulting deaths
but has been prepared      and injuries constituted a single occurrence pursuant to the language of
by the Reporter of         the policy, regardless of the fact that some of the deaths and injuries did
Decisions for the          not occur until some time after the collapse.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 2010-CH-10841; the
Review                     Hon. Franklin U. Valderama, Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Leslie J. Rosen, of Leslie J. Rosen Attorney at Law, P.C., of Chicago, for
Appeal                     appellants.

                           Robert P. Conlon and James W. Kienzle, both of Walker Wilcox
                           Matousek LLP, of Chicago, for appellee.


Panel                      JUSTICE TAYLOR delivered the judgment of the court, with opinion.
                           Justices Howse and Palmer concurred in the judgment and opinion.



                                             OPINION

¶1          At approximately 12:30 a.m. on June 29, 2003, a three-story porch located at the rear of
        the property at 713 West Wrightwood in Chicago, Illinois, collapsed during a party, resulting
        in the deaths of 12 individuals and injuries to 29 more. Those individuals and their estates


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     (collectively plaintiffs) ultimately settled their claims with the building owner and others
     (collectively defendants) in the underlying tort action and obtained an assignment of rights
     against appellant, First Specialty Insurance Corporation (First Specialty). Plaintiffs then filed
     this declaratory action against First Specialty, arguing that because the porch collapse
     constituted more than one occurrence, First Specialty was liable to them for the aggregate
     limit of the relevant insurance policy, $2 million, rather than the $1 million per occurrence
     limit that First Specialty had already paid. The trial court granted summary judgment in favor
     of First Specialty and plaintiffs appealed.

¶2                                     I. BACKGROUND
¶3       The following facts were stipulated to by the parties in a jointly filed “Agreed Statement
     of Facts” filed with the trial court on March 30, 2011, and therefore are not in dispute in this
     appeal.

¶4                                          A. The Collapse
¶5        In 2003, Phillip Pappas owned the three-story building located at 713 West Wrightwood
     in Chicago, Illinois. The building contained apartment units on each floor. Attached to the
     rear of the building was a three-story porch system, with stairways leading from the ground
     to the first floor, from the first to the second floor, and from the second to the third floor. On
     the evening of June 28, 2003, the residents of the second- and third-floor apartments hosted
     a party. At approximately 12:30 a.m. on the morning of June 29, 2003, while all of the
     plaintiffs were standing on either the second or third floor, the third floor of the porch
     suddenly collapsed onto the second floor of the porch, which immediately collapsed onto the
     first floor of the porch. The collapse was not interrupted by any intervening human acts or
     other preceding or subsequent events.
¶6        Ultimately, 13 individuals died and 29 more were injured “directly and solely from the
     porch collapse.” Many of those injuries did not manifest themselves for days or weeks after
     the collapse. The parties agree that “[t]here are no intervening acts or circumstances which
     could have or did contribute to and/or cause the deaths, injuries and/or mental conditions”
     suffered by the plaintiffs.

¶7                                       B. The Policy
¶8       At the time of the accident, Pappas’ property was insured by policy No. IRG 49077 (the
     policy) issued by defendant First Specialty for the policy period from February 1, 2003, to
     February 1, 2004. The other named insureds on the policy were Michael Aufrecht, L.G.
     Properties Co., and Restoration Specialists, LLC (the insureds). The policy’s “Coverage A
     Bodily Injury and Property Damage Liability” coverage unit had an “Occurrence Limit of
     $1,000,000 and a General Aggregate Limit of $2,000,000, subject to a $5,000 per occurrence
     deductible.”
¶9       The policy’s “Limits of Insurance” section provided, in pertinent part:
             “1. The Limits of Insurance Shown in the Declarations and the rules below fix the

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           most we will pay regardless of the number of:
               a. Insureds;
               b. Claims made or ‘suits’ brought; or
               c. Persons or organizations making claims or bringing ‘suits’.
                                               ***
               5. Subject to 2. or 3. above, whichever applies, the Each Occurrence Limits [sic] is
           the most we will pay for the sum of:
               a. Damages under Coverage A; and
               b. Medical expenses under Coverage C because of all ‘bodily injury’ and ‘property
           damage’ arising out of any one ‘occurrence’.”
       The policy defines bodily injury as “bodily injury, sickness or disease sustained by a person,
       including death resulting from any of these as [sic] any time” and occurrence as “an accident,
       including continuous or repeated exposure to substantially the same general harmful
       conditions.”

¶ 10                       C. The Consolidated Litigation and Settlement
¶ 11       Plaintiffs filed various complaints against the aforementioned insureds, which were later
       consolidated for discovery purposes only (hereinafter the Consolidated Litigation). The
       general thrust of those complaints was that the insureds’ failure to inspect the porch and
       maintain it in a reasonably safe manner was the cause of the plaintiffs’ deaths and injuries.
       First Specialty provided representation to the insureds and other defendants in the
       Consolidated Litigation, subject to a reservation of rights that the consolidated litigation
       “arose out of one accident or ‘occurrence’ and that First Specialty’s liability in connection
       with the Consolidated Litigation under no circumstances would exceed the Policy’s
       $1,000,000 Each Occurrence Limit.”
¶ 12       On March 11, 2010, the parties to the Consolidated Litigation, as well as Philadelphia
       Indemnity Insurance Company (Philadelphia), the insureds’ excess insurance carrier, entered
       into a settlement agreement resolving the litigation. Pursuant to the terms of that agreement,
       Philadelphia agreed to pay its policy limit of $15 million, the insureds agreed to pay a
       confidential amount, and First Specialty agreed to pay the policy’s $1 million occurrence
       limit. As part of the agreement, all actions comprising the Consolidated Litigation were
       dismissed with prejudice.
¶ 13       That same day, First Specialty executed an assignment of rights with plaintiffs, pursuant
       to which plaintiffs had the limited right to attempt to recover the difference between the
       policy’s general aggregate limit of $2 million and its occurrence limit of $1 million. The
       assignment restricted plaintiffs from asserting any other claim under the policy.
¶ 14       On March 16, 2010, plaintiffs initiated the instant action against First Specialty, seeking
       a declaratory judgment stating that First Specialty was obligated to pay out an additional $1
       million under the policy because the collapse constituted more than one occurrence. First
       Specialty denied these allegations, arguing that plaintiffs’ injuries all stemmed from one
       occurrence, the collapse, and therefore it was not required to pay an additional $1 million.

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       The parties submitted cross-motions for summary judgment in the spring of 2011, asserting
       essentially the same arguments. The trial court denied both motions in a July 15, 2011 order.
       First Specialty filed a motion to reconsider that ruling on September 22, 2011.
¶ 15       On November 22, 2011, the trial court entered a written memorandum opinion and order
       denying summary judgment for the plaintiffs and granting it in favor of First Specialty. In so
       holding, the trial court found:
           “[T]here was simply one source of all Plaintiffs’ injuries and resulting deaths. The porch
           collapse, and only the porch collapse, was the dangerous condition causing harm to the
           Plaintiffs. The parties agree that the porch collapse was not interrupted by any
           intervening human acts or other preceding or subsequent events. No intervening acts or
           circumstances broke the link between the injury causing event and the resulting injuries
           to Plaintiffs. Only where each asserted loss is the result of a ‘separate and intervening
           human act,’ whether negligent or intentional, or each act increased the insured’s exposure
           to liability, Illinois law will deem each such loss to have arisen from a separate
           occurrence.”
       Thus, the trial court concluded that because the porch collapse and resulting injuries and
       deaths constituted only one occurrence, First Specialty was not obligated to pay plaintiffs the
       aggregate limit of $2 million. This appeal followed.

¶ 16                                       II. ANALYSIS
¶ 17       The sole issue raised on appeal is whether the trial court erred when it found the porch
       collapse to be one occurrence and granted summary judgment in favor of First Specialty.
       Plaintiffs contend that under Addison Insurance Co. v. Fay, 232 Ill. 2d 446 (2009), because
       several individual plaintiffs’ injuries and deaths did not occur until some time after the
       collapse, First Specialty could not establish that all of the injuries and deaths constituted one
       occurrence under the policy. First Specialty, however, asserts that under the plain language
       of the policy and under Illinois law, the trial court properly found that plaintiffs’ injuries
       arose out of a single occurrence, because all of those injuries resulted from a single cause,
       namely, the collapse of the porch. We agree with First Specialty.
¶ 18       Summary judgment should be granted if all the evidence on file shows that there is no
       genuine issue as to any material fact and that the “moving party is entitled to a judgment as
       a matter of law.” 735 ILCS 5/2-1005(c) (West 2008). “By filing cross-motions for summary
       judgment, the parties agree that no factual issues exist and this case turns solely on legal
       issues subject to de novo review.” Gaffney v. Board of Trustees of the Orland Park Fire
       Protection District, 2012 IL 110012, ¶ 73.
¶ 19       This case requires us to interpret relevant provisions of the policy in order to determine
       whether the porch collapse and resulting injuries and deaths constituted a single occurrence
       under the policy language. In doing so, we are guided by our supreme court’s admonition that
       our “primary objective is to ascertain and give effect to the intention of the parties as
       expressed in the agreement. [Citation.] In performing that task, the court must construe the
       policy as a whole, taking into account the type of insurance purchased, the nature of the risks
       involved, and the overall purpose of the contract.” Nicor, Inc. v. Associated Electric & Gas

                                                 -5-
       Insurance Services, Ltd., 223 Ill. 2d 407, 416 (2006). Where the terms of the policy are
       unambiguous, we will give them their plain and ordinary meaning and apply them as written.
       Pekin Insurance Co. v. Beu, 376 Ill. App. 3d 294, 296-97 (2007). Moreover, a policy
       provision is not rendered ambiguous merely because the parties disagree as to its meaning;
       rather, an ambiguity only exists where the policy language is susceptible to more than one
       reasonable interpretation. Founders Insurance Co. v. Munoz, 237 Ill. 2d 424, 433 (2010).
       However, in determining what constitutes an occurrence under the language of the policy,
       we are also mindful that “what seems like a single accident, happening, or event to the
       person who triggered the incident giving rise to the loss for which coverage is sought may
       be perceived as multiple accidents, happenings or events from the perspective of those who
       sustained injury or damage as a result of the insured’s conduct.” Nicor, 223 Ill. 2d at 418.
¶ 20       Here, it appears to us that, under the clear and unambiguous language of the policy, the
       injuries in the instant case were all the result of a single occurrence. The policy defines
       “occurrence” as “an accident, including continuous or repeated exposure to substantially the
       same general harmful conditions.” The policy further provides that “damages because of
       ‘bodily injury’ include damages claimed by any person or organization for *** death
       resulting at any time from the ‘bodily injury.’ ” The term “bodily injury” is defined in the
       policy as “injury, sickness or disease sustained by a person, including death resulting from
       any of these at any time.” (Emphasis added.)
¶ 21       In light of this language, we can see nothing in the policy which would support plaintiffs’
       contention that the collapse constituted multiple occurrences under the policy. According to
       the policy, the per-occurrence limit of $1 million applied to all injuries or deaths arising “at
       any time” out of an accident. As stated above, the parties agree that “[t]here are no
       intervening acts or circumstances which could have or did contribute to and/or cause the
       deaths, injuries and/or mental conditions” suffered by the plaintiffs, and all of those injuries
       were caused “directly and solely from the porch collapse.” Thus, plaintiffs’ argument that it
       is entitled to a finding of multiple occurrences because “First Specialty cannot possibly show
       that all of the individuals who died at the scene of the porch collapse, died at or near the
       same time” is without merit. Under the language of the policy, which states that an
       occurrence encompasses any injuries or deaths at any time, it is immaterial when the
       individual plaintiffs’ injuries or deaths occurred, because, as plaintiffs concede, the collapse
       was the sole cause of those injuries and deaths. Therefore, because the language of the policy
       is unambiguous and indicates that the collapse and resulting injuries and deaths constituted
       only one occurrence, we cannot say that the trial court erred in granting summary judgment
       in favor of First Specialty. See Pekin Insurance Co., 376 Ill. App. 3d at 296-97 (where terms
       of insurance policy are unambiguous, courts will apply them as written).
¶ 22       However, even if we were to accept plaintiffs’ contention that the policy is ambiguous
       and look past the clear language of the policy, we would nevertheless reach the same
       conclusion and find that the trial court did not err in granting summary judgment in favor of
       First Specialty because all of plaintiffs’ injuries were caused by the same negligent act.
¶ 23       Our supreme court has noted that sometimes “the terms of the insurance policy are not
       always sufficient, standing alone, to permit a definitive determination as to whether a
       particular case involves one occurrence or many.” Nicor, 223 Ill. 2d at 418. In such cases,

                                                 -6-
       Illinois courts, as well as courts in a majority of other jurisdictions, will apply the “cause
       theory” to determine the number of occurrences “by referring to the cause or causes of the
       damages.” Nicor, 223 Ill. 2d at 418. Courts favor this approach over the effect theory, which
       determines the number of occurrences based on the number of claims or injuries resulting
       from an event. The Nicor court distinguished these two theories using the following example:
                “The difference between these two approaches is illustrated by the following
            hypothetical. Assume that a motorist is traveling down a street lined with parked cars.
            Looking away from the roadway to change the station on his car’s radio, the motorist
            allows his vehicle to wander. As a result, his car strikes the sides of three of the parked
            cars in succession, damaging each of them. The owners of the three damaged vehicles
            sue, and the vehicle owner seeks indemnification from his automobile insurance carrier.
            Under the effect theory, the fact that three cars were damaged and three claims were filed
            would mean that there were three ‘occurrences’ for purposes of determining liability
            coverage, absent specific policy language to the contrary. Under the cause theory, on the
            other hand, the fact that the damage to all three vehicles resulted from the same
            conditions and was inflicted as part of an unbroken and uninterrupted continuum would
            yield the conclusion that there was only one occurrence.” Nicor, 223 Ill. 2d at 418-19.
¶ 24        Under the cause theory, the time at which injuries manifest themselves is irrelevant to a
       determination of the number of occurrences. Illinois National Insurance Co. v. Szczepkowicz,
       185 Ill. App. 3d 1091, 1096 n.2 (1989) (“one occurrence can result in injuries suffered over
       a period of time; in such a case, time would be irrelevant to a determination of the number
       of occurrences”). The only relevant question is how many separate events or conditions led
       to a party’s injuries. Szczepkowicz, 185 Ill. App. 3d at 1096 n.2.
¶ 25        Applying the cause theory to the facts of this case leads to the inescapable conclusion that
       the collapse constituted only one occurrence under the policy. There is no dispute that the
       collapse was the sole and proximate cause of all plaintiffs’ injuries, nor is there any
       allegation that any separate or intervening acts or circumstances contributed to their injuries.
       The parties stipulated to this in their agreed statement of facts, and plaintiffs have provided
       no evidence which would tend to support the existence of anything which would “deem each
       such loss to have arisen from a separate occurrence.” (Internal quotation marks omitted.)
       Addison, 232 Ill. 2d at 457. Because the parties are in agreement that the porch collapse was
       the single cause of all of plaintiffs’ injuries, there can be no question that, under the cause
       theory, the collapse constituted only one occurrence under the policy and, therefore, the trial
       court did not err in granting summary judgment in favor of First Specialty.
¶ 26        Plaintiffs, however, contend that our inquiry must go beyond the cause theory and apply
       the “time and space test” as articulated in Addison, 232 Ill. 2d at 461, which, they allege,
       requires a reversal of summary judgment in favor of First Specialty. For reasons to be
       discussed below, we believe the time and space test is inapplicable to the case at bar.
       However, even if we were to apply this test to the facts of this case, we would nevertheless
       reject plaintiffs’ contention that its application mandates a finding in their favor.
¶ 27        In Addison, the court found that where multiple injuries are sustained over an open-ended
       period of time due to an “ongoing negligent omission,” rather than an affirmative act or acts


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       of negligence, the cause theory as stated in Nicor may be an insufficient rubric by which to
       determine the number of occurrences involved. Addison, 232 Ill. 2d at 457-58. For instance,
       if a landowner negligently failed to secure his property, and several people were injured on
       the property at various times over the course of several weeks, the Addison court stated that
       it would be unreasonable to bundle all of their injuries into a single occurrence, even though
       all of their injuries were caused by the landowner’s ongoing negligent failure to secure the
       property. Addison, 232 Ill. 2d at 458. The Addison court therefore adopted the time and space
       test as a limiting principle in such situations. Addison, 232 Ill. 2d at 461. Under this test, “ ‘if
       cause and result are simultaneous or so closely linked in time and space as to be considered
       by the average person as one event,’ then the injuries will be deemed the result of one
       occurrence.” Addison, 232 Ill. 2d at 460 (quoting Doria v. Insurance Co. of North America,
       509 A.2d 220, 224 (N.J. Super. Ct. App. Div. 1986)).
¶ 28        The Addison court then applied the time and space test to the facts of that case. In
       Addison, two boys left their homes to go fishing and never returned. Their bodies were found
       several days later in an excavation pit. Addison, 232 Ill. 2d at 448-49. The boys’ times of
       death could not be determined, nor could the amount of time that elapsed between their
       deaths. Addison, 232 Ill. 2d at 450. The issue on appeal was whether the boys’ deaths
       constituted one or two occurrences under the relevant insurance policy. Addison, 232 Ill. 2d
       at 450. Applying the time and space test, our supreme court found that there was insufficient
       evidence to determine whether the boys’ injuries “were so closely linked in time and space
       to be considered one event.” Addison, 232 Ill. 2d at 462. Because the insurer bore the burden
       of proof on that issue, the court found against the insurer and held that the boys’ deaths
       constituted separate occurrences. Addison, 232 Ill. 2d at 462.
¶ 29        Plaintiffs rely primarily on Addison in support of their contention that summary judgment
       in their favor is warranted under the time and space test. However, the present case, unlike
       Addison, is not a case in which multiple injuries were sustained over time due to an ongoing
       negligent omission. Plaintiffs have conceded that all of their injuries were caused “directly
       and solely” by a single incident–the porch collapse–instead of multiple incidents occurring
       over an open-ended period of time. Consequently, the time and space test is inapplicable
       here. Rather, the cause theory as described in Nicor is controlling.
¶ 30        In this regard, the case of Travelers Property Casualty Co. of America v. RSUI Indemnity
       Co., 844 F. Supp. 2d 933 (N.D. Ill. 2012), is instructive. RSUI involved two claims against
       a meat product manufacturer that produced a batch of ground beef that was tainted by E. coli.
       RSUI, 844 F. Supp. 2d at 934. The first claimant became ill after eating some of the tainted
       meat on April 11, 2009; he subsequently transmitted the infection to his granddaughter, the
       second claimant, who became ill on May 9, 2009. RSUI, 844 F. Supp. 2d at 934. The RSUI
       court held that these two claims involved a single occurrence, and, in doing so, it rejected the
       contention that the time and space test would apply. RSUI, 844 F. Supp. 2d at 936. The court
       explained:
            “The time and space test is used only when the negligence alleged is the result of an
            ‘ongoing omission,’ such as the failure by the land owner in Addison to secure his
            property. [Citation.]


                                                   -8-
                As Travelers correctly argues, the negligence asserted against Valley Meats is a
            discreet act–the production of a single batch of tainted meat. There were no intervening
            acts of negligence by Valley Meats that occurred between the time [the first claimant]
            and [the second claimant] became ill. Because the damages for which coverage is sought
            result from the manufacture and sale of a defective product, ‘the loss emanates from a
            single cause and there is but one occurrence.’ ” RSUI, 844 F. Supp. 2d at 936 (quoting
            Nicor, 223 Ill. 2d at 432).
       Likewise, in the present case, it is undisputed that the injuries suffered by plaintiffs all arose
       from a discrete incident: the collapse of the porch. Because the plaintiffs’ losses all emanate
       from that single cause, under Nicor, there is but one occurrence. See Nicor, 223 Ill. 2d at 432.
¶ 31        Moreover, even if we were to apply the time and space test to the case at bar, we would
       still reach the same result. Unlike in Addison, the trial court in this case was presented with
       more than sufficient evidence to conclude that the cause of plaintiffs’ injuries was so closely
       linked in time and space as to be considered by the average person as one event. As stated
       above, there is no dispute regarding the causes or circumstances surrounding plaintiffs’
       injuries and deaths. As the trial court correctly noted, “much was unknown as to the cause
       of the boys’ deaths [in Addison]. That mystery, however, is not present in this case. All of
       the Plaintiffs’ deaths and injuries can be directly traced to one cause: the porch collapse.” In
       light of the evidence in the record and the facts stipulated to by the parties, we find no error
       in this conclusion. Consequently, even if we were to apply the time and space test to this
       case, we would nevertheless conclude that summary judgment in favor of First Specialty was
       proper.

¶ 32                                   III. CONCLUSION
¶ 33       For the foregoing reasons, we affirm the decision of the trial court.

¶ 34       Affirmed.




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