                         Illinois Official Reports

                                Appellate Court



                  Motorola Solutions, Inc. v. Zurich Insurance Co.,
                            2015 IL App (1st) 131529



Appellate Court     MOTOROLA SOLUTIONS, INC., Plaintiff-Appellee, v. ZURICH
Caption             INSURANCE COMPANY and ASSOCIATED INDEMNITY
                    CORPORATION, Defendants-Appellants (Continental Casualty
                    Company; National Fire Insurance Company of Hartford;
                    Transportation Insurance Company; American Casualty Company of
                    Reading, Pennsylvania; National Union Fire Insurance Company of
                    Pittsburgh, Pennsylvania; Liberty Mutual Fire Insurance Company;
                    and Liberty Insurance Company, Defendants).


District & No.      First District, Fifth Division
                    Docket Nos. 1-13-1529, 1-13-1530 cons.


Filed               May 29, 2015


Decision Under      Appeal from the Circuit Court of Cook County, No. 11-L-1902; the
Review              Hon. Daniel J. Pierce, Judge, presiding.


Judgment            Affirmed.


Counsel on          James R. Murray, of Tressler LLP, of Chicago, and Jack Thomas, of
Appeal              Crowell & Moring LLP, of New York, New York, for appellant
                    Associated Indemnity Corporation.

                    Michael M. Marick and Karen M. Dixon, both of Meckler Bulger
                    Tilson Marick & Pearson LLP, of Chicago, for appellant Zurich
                    Insurance Company.

                    James A. White and Brian J. Murray, both of Jones Day, of Chicago,
                    and Peter D. Laun and Matthew R. Divelbiss, both of Jones Day, of
                    Pittsburgh, Pennsylvania, for appellee.
     Panel                      JUSTICE GORDON* delivered the judgment of the court, with
                                opinion.
                                Presiding Justice Palmer and Justice McBride concurred in the
                                judgment and opinion.




                                                  OPINION

¶1         The instant consolidated appeals arise from the interpretation of two nearly identical
       settlement agreements entered into by plaintiff Motorola Solutions, Inc. (Motorola), one with
       defendant Zurich Insurance Company (Zurich) and one with defendant Associated Indemnity
       Corporation (Associated).1 The parties disagree about whether the settlement agreements
       contained provisions that operated to release defendants from providing insurance coverage
       for certain claims against Motorola. Each party filed a motion for summary judgment on the
       issue, all of which were denied after the trial court found that the releases were ambiguous.
       The parties conducted discovery and a bench trial was held on the issue of the scope of the
       releases’ language. The trial court concluded that the parties had not released Motorola’s
       claims, and defendants now appeal. On appeal, defendants claim that the trial court erred in
       not granting summary judgment in their favor and erred in finding that the claims had not
       been released after the bench trial. Additionally, defendants claim that the trial court erred in
       denying their joint motion to compel discovery of certain Motorola documents. For the
       reasons that follow, we affirm.

¶2                                           BACKGROUND
¶3         We note that the parties’ briefs and portions of the record on appeal were permitted to be
       filed under seal, including the settlement agreements at issue on appeal. While we respect the
       parties’ wishes to keep confidential material private, our consideration of the trial court’s
       interpretation of the settlement agreements will necessarily require us to discuss details of
       these documents in the instant appeal. However, we only include those details necessary to
       our resolution of the issues on appeal.

¶4                                         I. Complaint
¶5        On February 18, 2011, Motorola filed a complaint for declaratory judgment and breach of
       contract against a number of insurance companies, including Zurich and Associated; the
       complaint was amended on July 1, 2011, and again on February 22, 2013. Motorola sought

             *
            Oral argument on the instant consolidated appeals was heard by a different panel of justices.
       However, the current panel has considered the audio of oral argument, in addition to the parties’ briefs
       and the record on appeal.
           1
             Associated is a subsidiary of Fireman’s Fund Insurance Company and both names are used
       interchangeably throughout the record on appeal. For the sake of consistency, we use the name
       “Associated.”

                                                      -2-
       the defendants to provide it legal representation to defend Motorola and/or coverage for
       defense costs under insurance policies issued by each of the defendants for four underlying
       personal injury actions in which claims were asserted against Motorola. The complaint
       identified one Associated policy with a policy period from July 1, 1983, through July 1,
       1985, and 13 Zurich policies with coverage from January 31, 1963, through July 1, 1983, and
       from July 1, 1985, through July 1, 1987.
¶6         The four underlying actions (the clean room cases) alleged that Motorola was liable for
       injuries that children of former Motorola employees and contractors allegedly sustained as a
       result of exposure to various chemicals in “clean rooms” in Motorola manufacturing
       facilities. According to Motorola’s complaint, from the 1960s through 2003, Motorola
       operated facilities that manufactured, among other things, semiconductor products. These
       facilities included certain rooms that were designated as “clean rooms” in which the
       semiconductor products were manufactured, which “were designed to prevent dust and other
       similar materials from contacting semiconductor components during the manufacturing
       process.” The clean room cases all involved substantially similar allegations, in general
       alleging that hazardous or toxic materials were present in the “clean rooms” and that “either
       the father, the mother, or both worked in a Motorola clean room facility for some period of
       time before, and in a number of cases after, the plaintiff child was born; often the period of
       employment [was] alleged to have continued through the in utero period. The plaintiffs
       generally claim[ed] that the children were injured as a result of parents working in clean
       rooms.”
¶7         Motorola’s complaint alleged that one or more of the insurer defendants had a duty to
       defend and/or pay defense costs in the clean room cases and that by failing to do so, the
       defendants had breached their obligations to Motorola under the insurance policies.
¶8         The complaints in the underlying clean room cases were attached to Motorola’s
       complaint. The complaints alleged that the parents of the plaintiff children had been
       employed at Motorola facilities, where they “worked with and [were] exposed to harmful
       chemicals and substances that were utilized in the process of manufacturing semiconductor
       devices.” The employees were required to use “teratogenic and reproductively toxic
       compounds” in the clean rooms, but “[n]o generalized ventilation system was configured
       explicitly to protect the workers from inhalation or skin exposure to the liquids, vapors, gases
       and fumes from the chemicals” and “[a]t relevant times[,] these chemicals have been
       components of the recirculated air in the clean room, have remained in the recirculated air
       mixture and have not been removed from it.” These chemicals “were defective, unsafe and/or
       unreasonably dangerous” and caused the children to become “severely and permanently
       injured.”
¶9         On August 5, 2011, Zurich filed its answer and affirmative defenses and also included a
       counterclaim in which it alleged that Motorola had released all of its claims for coverage for
       the clean room cases in a settlement agreement and release entered into with Zurich in
       November 2003 (the Zurich release).
¶ 10       On August 8, 2011, Associated filed its answer and affirmative defenses and also
       included a counterclaim alleging that it had no defense obligation for the clean room cases
       due to a settlement agreement and release that was executed between Associated and
       Motorola on May 30, 2003 (the Associated release).


                                                  -3-
¶ 11                                            II. Releases
¶ 12       The releases between Motorola and the two insurers are at the heart of the instant appeal.
       While the Zurich release and the Associated release are two separate documents executed at
       different times, the substantive provisions of the releases are nearly identical.
¶ 13       The Associated release was executed on May 30, 2003, and included “whereas” clauses
       providing, in relevant part:
                   “WHEREAS, Motorola has been named in several lawsuits by private parties in
               Arizona for alleged bodily injury and property damage relating to Motorola’s disposal
               of hazardous substances in the Phoenix area ***, has been identified as being
               responsible for the investigation and remediation of contamination at and around
               numerous sites around the United States (‘the Known Sites,’ ***), and may be liable
               for claims asserted by the United States Environmental Protection Agency
               (‘USEPA’), the Arizona Department of Environmental Quality (‘ADEQ’) and/or
               other similar state or local regulatory authorities or private individuals for alleged
               harms as a result of contamination at and/or around the Known Sites (collectively, the
               ‘known Environmental/Toxic Tort Claims’);
                   ***
                   WHEREAS, [Associated] has disputed Motorola’s claim of entitlement to defense
               or indemnity in connection with the known Environmental/Toxic Tort Claims;
                                                    ***
                   WHEREAS, Environmental/Toxic Tort Claims may in the future be asserted
               against Motorola with respect to the Known Sites and/or additional Sites;
                   WHEREAS, Motorola and [Associated] now desire to compromise, settle and
               adjust fully and finally all disputes which now or hereafter may exist between them
               with respect to any and all claims, known and unknown, past, present or future, which
               have arisen or may arise under any and all coverages of the Policies for
               ‘Environmental/Toxic Tort Claims’ (as that term is defined herein) on the terms
               hereinafter set forth.”
¶ 14       The release contained an extensive definition for “Environmental/Toxic Tort Claims,”
       which we reproduce in full:
               “ ‘Environmental/Toxic Tort Claim(s)’ means:
                   i. any past, present and future Claim involving Motorola, whether presently
               known, unknown or unknowable, involving actual, alleged, threatened or potential
               property damage (or injury to property or damage to natural resources including but
               not limited to ‘NRD’ or ‘natural resource damages’), bodily injury (including
               sickness, disease, disability or death at any time resulting therefrom), mental injury,
               mental anguish, shock, emotional distress, fear of injury (including Claims seeking
               medical monitoring or damages for care and loss of services), personal injury and
               claims to recover clean-up or remediation costs (including but not limited to costs
               incurred and sums expended, or which may in the future be incurred or expended for
               investigation, removal, distribution, treatment or containment), involving actual,
               alleged, threatened or potential environmental pollution, environmental
               contamination or other injurious environmental conditions, including exposure to
               smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste

                                                  -4-
                materials or other environmental contaminants or pollutants, petroleum or natural gas
                or derivatives thereof, including without limitation, any hazardous waste as defined in
                42 U.S.C. § 9601 or any substance regulated now or in the future by any government
                entity to protect human health or the environment from injury, damage or
                contamination.
                    ii. ‘Environmental/Toxic Tort Claim(s)’ shall include Claims asserted under
                CERCLA, RCRA or equivalent state statutes or common law, whether at law or
                equity, and whether sounding in tort, contract, equity, nuisance, trespass, negligence
                or strict liability. ‘Environmental/Toxic Tort Claim(s)’ further includes, but is not
                limited to, demands for costs incurred and sums expended, or which may in the future
                be incurred or expended, for investigation, removal, distribution, treatment or
                containment of environmental contamination, or incurred in relation to environmental
                clean-up or remediation costs, whether known or unknown, including but not limited
                to Claims involving the properties or operations of Motorola.
                    iii. The term ‘Environmental/Toxic Tort Claim’ shall not include any past, present
                or future Claim or portion of any Claim against Motorola:
                         a. alleging or involving injury or damage caused or allegedly caused by or
                    arising from a product sold by Motorola, a product containing materials sold by
                    Motorola, or a product that contains component parts manufactured by Motorola,
                    including but not limited to two-way radios, cellular telephones, or any product
                    that utilizes or emits RF radiation, in which such injury or damage occurs or is
                    alleged to have occurred after the product or component part has been sold by
                    Motorola or after such product or component part has left Motorola’s possession,
                    custody, or control, and before the product has become a waste product or become
                    part of a waste product; or
                         b. alleging or involving injury or damage caused or allegedly caused by,
                    arising from or related in any way to asbestos or asbestos-containing materials.”
¶ 15       A “ ‘Claim’ ” under the release “means any past, present or future claim, demand, order,
       directive, request, counter-claim, affirmative defense, PRP letter, PLP letter, NOR, request
       for information, notice, damage, lien, contract, indemnity to defense obligation, agreement,
       letter, inquiry, promise, liability, loss, cost, expense, action, suit, cause of action, cross-claim,
       third-party action, notice of liability or potential liability, arbitration or mediation demand, or
       notice of statutory or regulatory obligation, of any kind whatsoever, whether known or
       unknown, asserted or unasserted, foreseen or unforeseen, fixed or contingent, suspected or
       anticipated, direct, indirect or consequential, whether at law, equity, admiralty or otherwise,
       and whether sounding in tort, contract, equity, trespass, negligence, strict liability or any
       other statutory, regulatory, administrative or common law cause of action of any sort.”
¶ 16       The release provided that “[t]his Agreement prevails over prior communications
       regarding the matters contained herein between the signatories hereto or their representatives.
       This Agreement has been reviewed by counsel for the signatories hereto, and shall not be
       construed against any signatory, each signatory expressly waiving the doctrine of contra
       preferentem.” Finally, the release provided that “[t]his Agreement is an integrated Agreement
       and contains the entire Agreement regarding the matters herein between the signatories
       hereto, and no representations, warranties, or promises have been made or relied on by any
       signatory hereto other than as set forth herein.”

                                                     -5-
¶ 17       The release also contained several statements that the release “is not intended to be, nor
       shall it be, constructed as an insurance policy interpretation” and that the release “is not a
       policy of insurance or a modification of any policy of insurance and the signatories do not
       intend same to be interpreted as such.”
¶ 18       The Zurich release was executed on November 26, 2003, and was, in relevant part,
       identical to the language of the Associated release quoted above.

¶ 19                                III. Motions for Summary Judgment
¶ 20       On October 7, 2011, Zurich filed a motion for summary judgment, claiming that
       Motorola had previously released all claims for coverage for the clean room cases under the
       Zurich insurance policies. The same day, Associated also filed a motion for summary
       judgment on the same basis.
¶ 21       Also on October 7, 2011, Motorola filed a motion for partial summary judgment against
       Zurich and Associated on the issue of defendants’ counterclaims and affirmative defenses
       concerning the releases, arguing that coverage for the clean room cases was not released
       because the clean room cases involved chemicals inside Motorola facilities and not chemicals
       released into the environment.
¶ 22       On April 13, 2012, Judge Daniel Pierce issued a written order denying the parties’
       motions for summary judgment. The trial court noted that “[defendants’] position stems from
       a number of lawsuits filed beginning around 1991 against Motorola where Motorola was
       sued for polluting the groundwater, soil, and air near its facilities in Arizona. Motorola
       submitted a claim to Defendants in those cases and the Insurers disputed coverage. The
       parties eventually decided to settle their disputes and, in 2003, Motorola entered into separate
       but substantially similar settlement agreements and releases (Releases) with Defendants
       which relieved them of their duty to defend Motorola for past, present, and future
       ‘environmental/toxic tort claims.’ ” The lawsuits concerning the Arizona pollution are
       referred to by the trial court and the parties as the “Valley litigation” or the “Valley claims.”
¶ 23       The trial court found that “[i]t can be inferred from the text of the Releases that at the
       time the Releases were executed the complaints pending against Motorola dealt with outdoor
       pollution caused by Motorola. The context in which the parties entered into the Releases
       tends to favor the interpretation advanced by Motorola. The use of the term ‘environmental’
       in the Releases would appear to only relieve the insurers of their duty to defend future cases
       in which Motorola is alleged to have caused harm by polluting or contaminating areas
       outside of its facilities.” The court pointed to the decision of American States Insurance Co.
       v. Koloms, 177 Ill. 2d 473 (1997), and noted that the Illinois Supreme Court had explained
       that traditional environmental contamination “is contamination of land, the atmosphere or
       water.” The court also noted that the Illinois Environmental Protection Agency had
       consistently limited its authority under the federal Clean Air Act to outdoor air and that the
       legislature had given the agency the authority to take action whenever hazardous substances
       were “ ‘release[d] into the environment’ ” but specifically excluded “ ‘any release which
       results in exposure to persons solely within [a] workplace’ ” (quoting 415 ILCS 5/3.395
       (West 2010)).
¶ 24       The trial court found that “[t]he language used in the Releases to define
       environmental/toxic tort is the prototypical language used in pollution exclusions for
       insurance policies.” The court again pointed to Koloms, noting that the Illinois Supreme

                                                   -6-
       Court had held that standard-form pollution exclusion clauses in commercial general liability
       insurance policies did not apply in cases of indoor pollution and that an insurer must defend
       such claims. The trial court found that “[b]ecause the language used in the pollution
       exclusion in Koloms is virtually identical to that used in the Releases, it is not unreasonable
       to infer that the court would treat this case the same way and hold that such an exclusion does
       not apply to indoor air.” However, the court noted that the Koloms court was interpreting an
       insurance policy and had construed the policy against the insurer; by contrast, “[h]ere, the
       Releases contain anti-contra preferendum clauses so the Court will not construe the Releases
       against either party.”
¶ 25       The trial court noted that “[i]n assessing the insurers’ position, the Court is cognizant of
       the fact that the language of the Releases is quite broad,” contemplating “inclusion of
       incidents that are not necessarily identical to the cases that gave rise to their execution.”
       “Motorola agreed to release Zurich and Associated Indemnity from defending it against past,
       present and future claims, whether known, unknown or unknowable”; thus, “[t]he insurers’
       argument that the Releases essentially relieved them of the duty to defend virtually all cases
       pertaining to injuries from toxic exposure is not unreasonable.”
¶ 26       The court concluded that “[t]he parties to these Releases provided their own definition for
       environmental/toxic tort claims and it is not clear whether the clean room suits are within the
       scope of that definition. The interpretations advanced by both Motorola and the insurers are
       reasonable. As a result, the Court cannot determine the intention of the parties solely based
       upon the plain language of the Releases.”
¶ 27       The trial court also considered whether the “ ‘carve-out’ provisions” in the releases
       supported the insurers’ argument that the clean room suits fell within the scope of the
       releases. The court noted that the insurers had argued that if Motorola’s interpretation of the
       meaning of “environmental claim” was adopted, then “there would have been no purpose for
       excluding asbestos claims and products claims because those claims would have been outside
       the scope of the Releases in the first place.” The court found that “[a]s the Court looks to
       give meaning to each provision of the contract, this point is well taken.” However, the court
       noted that “even though the carve-out provisions might be indicative of the parties’ intent,
       the fact that they carved out exceptions to the scope of the Releases does not change the
       definition the parties ascribed to ‘environmental/toxic tort claims.’ If the insurers’ argument
       on this point is accepted, the Releases become unreasonably broad and encapsulate claims
       which could not remotely be considered environmental claims. The interpretation advanced
       by the insurers regarding these carve-out provisions essentially reads the term
       ‘environmental’ out of the Releases. The Releases also cannot be interpreted in a manner
       where every claim not expressly exempted from their scope must be considered included.”
       Therefore, the court found, “the Court cannot determine as a matter of law whether the clean
       room cases fall within the scope of the Releases.”
¶ 28       The trial court summarized its analysis by noting that “[h]ere, the language of the
       Releases does not resolve whether the clean room cases fall within their scope. The term
       ‘environmental/toxic tort’ as it is used in the Releases is ambiguous. Certain factors favor
       Motorola’s desired interpretation while others favor the interpretation proffered by the
       Defendants.” In such a case, the court found that summary judgment was inappropriate and
       stated that “[e]ven though there are cross motions for summary judgment pending before the
       Court and the parties do not dispute the facts, reasonable persons could draw divergent

                                                  -7-
       inferences from the facts at issue. Reasonable minds could disagree about the meaning of the
       term environmental/toxic tort claims as used in the Releases and whether the clean room
       cases fall within the scope of that term. It is clear that issues regarding this subject matter
       have been occurring around the country for years, but none of the parties to the Releases
       adequately, clearly or unambiguously protected themselves [from] the ramifications of such
       an event. Because the term is ambiguous, the parties must present further evidence regarding
       the intended meaning of ‘environmental/toxic tort’ for resolution by the trier of fact.”

¶ 29                                          IV. Discovery
¶ 30       After the trial court’s denial of the parties’ motions for summary judgment, the parties
       engaged in discovery on the issue of the scope of the releases. As part of discovery,
       defendants filed a motion to compel the production of a document entitled the “CRSP
       Reference Notebook (Environmental),”2 which they claimed would be relevant to show that
       Motorola considered clean room claims to be “environmental.” The document was allegedly
       a compilation of memoranda drafted by a number of environmental and toxic tort attorneys
       working under Motorola’s environmental, health, and safety group beginning in 1996,
       concerning a defense strategy for anticipated litigation over environmental chemical
       exposure in Motorola’s clean rooms after IBM, a competitor of Motorola, had been sued for
       injuries and birth defects to children of employees and contractors who worked in IBM’s
       clean room facilities. Motorola refused to produce the documents, arguing that the
       attorney-client privilege and work product doctrine applied. On November 28, 2012, the trial
       court ordered Motorola to produce the notebook to the court for in camera review, after
       which the court would “rule on whether the CRSP Notebook is relevant.”
¶ 31       On December 10, 2012, at the beginning of trial, the trial court ruled on defendants’
       motion to compel production of the CRSP notebook. The court stated:
                   “On the first topic with respect to the motion to compel, I reviewed the
               compilation of documents that are referred to as the CRSP notebook which is the
               Clean Room Safety Program notebook.
                   The defendants moved to have the notebook[,] I’ll refer to it as[,] produced in
               discovery. The plaintiff objected on the grounds of attorney-client privilege and work
               product, attorney work product privilege.
                   The Court is going–and I did review the manual. I find it to be privileged
               information both as far as attorney-client matters and as to–and also that it is perhaps
               also work product information.
                   Additionally, I’m ruling that it’s not relevant to the issue before the Court today
               which is why we are here, and that is to determine what the phrase ‘environmental
               toxic tort’ means as used in the two releases in question in this declaratory action
               proceeding.
                   I don’t think work product or attorney-client information that was generated at
               least several years prior to the execution of this release is relevant to the Court’s
               inquiry as to what the parties intended, what the parties meant and what they agreed
               to with respect to the term ‘environmental toxic tort’ in the context of the

          2
           “CRSP” is an abbreviation for “Clean Room Safety Program.”

                                                  -8-
              circumstances surrounding the execution of the questioned releases. So with that,
              that’s the ruling on the motion to compel.
                  Now, that is not to say that a different ruling might–and I emphasize ‘might’–be
              appropriate if this were an underlying declaratory judgment action on the issue of
              whether there was either a duty to defend or a duty to indemnify.
                  I know ultimately, that’s the bone of contention between the parties, but at this
              juncture, the issue is what did the release that was executed in 2003 mean, what did
              the parties want it to mean and what did they bargain for and what did they get when
              they wrote it down and signed it.”

¶ 32                                           V. Trial
¶ 33      As noted, the parties came before the trial court for a bench trial on December 10, 2012.

¶ 34                                      A. Associated Witnesses
¶ 35                                       1. Alexander Gillespie
¶ 36       Alexander Gillespie testified that he was a litigator with the law firm of Bonner, Kiernan,
       Trebach & Crociata and had represented Associated in connection with insurance coverage
       claims relating to the “Valley litigation,” which was “[a] group of both litigated and
       nonlitigated claims arising out of environmental contamination or releases at Motorola sites
       in the Phoenix area.” The types of claims were “[b]oth what I’ll call environmental and toxic
       tort claims, meaning contamination itself of the ground and groundwater, et cetera, and
       claims, for example, by residents of the area that toxic substances had migrated through the
       groundwater into their houses and they had been injured by exposure to the toxic substances
       that way.” The Valley claims were “long-tail” or “delayed manifestation” claims.
¶ 37       Gillespie testified that Associated engaged Motorola in discussions about resolving
       coverage issues concerning the Valley litigation and a meeting between the two occurred in
       October 2002, with Gillespie, Eric Billeter, Shirley Shean, and J.P. Salgado present on behalf
       of Associated. Associated had prepared a PowerPoint presentation “which culminated–we
       were trying to get policy releases or policy buybacks from Motorola with respect to *** the
       [Associated] policies so we went through various types of claims that we were aware of that
       Motorola was involved with and various types of exposures, money that had been paid, both
       defense and indemnity, on those various types of claims and applied a coverage analysis to
       those claims and arrived at essentially what we’d valued as the–the dollar value of the
       [Associated] exposure with respect to those claims. And then we presented an offer of a
       greater amount for policy buybacks.” Gillespie testified that Associated offered $4 million
       “[f]or full policy releases of all the Motorola policies,” meaning that “[i]t’s essentially as if
       you tear up the policies and they never existed. No claims could ever be presented against
       those policies again.” Gillespie testified that there was “some dialogue” at the meeting, but
       that Motorola expressed reluctance to release asbestos or cell phone claims, because “[t]hey
       didn’t think that they could put a value on the exposure of release of those claims.”
¶ 38       On January 29, 2003, Gillespie sent a letter to Mike Foradas at Kirkland & Ellis
       “providing a draft form of settlement agreement or release for a policy buyback with a
       carveout for asbestos-related claims.” The scope of the proposed release was “[f]ull policy
       releases for all of the policies other than potential claims for insurance coverage of


                                                   -9-
       asbestos-related claims.” After sending the draft agreement to Motorola, Associated
       continued to engage in its analysis of the claims and was also preparing an actuarial analysis
       of information concerning cell phone claims that it had received from Motorola.
¶ 39       On March 17, 2003, a few days before a subsequent March 19, 2003, meeting with
       Motorola, Associated received a draft settlement agreement from Foradas. The draft
       agreement was “certainly much more restrictive” than the earlier draft Associated sent to
       Motorola and was “essentially a release of Valley type claims, be they in the Valley claims
       themselves or similar claims elsewhere.” The draft agreement removed the language
       releasing “any and all coverages of the Policies” and changed it to release
       “environmental/toxic tort claims” under the policies; “environmental/toxic tort claims” was a
       reference to the Valley litigation and similar claims.
¶ 40       On March 19, 2003, Associated and Motorola met at Motorola’s headquarters in
       Schaumburg, Illinois; Gillespie, Billeter, Salgado, Shean, and Noel Hehr were present on
       behalf of Associated, while Foradas from Kirkland & Ellis, Jack Montgomery from Jones
       Day, in-house counsel Kathleen Massey, corporate treasurer Garth Milne, and risk manager
       Joe Wojdula were present on behalf of Motorola. The meeting began with Foradas making a
       45-minute PowerPoint presentation on behalf of Motorola, responding to Associated’s
       presentation from the first meeting; “Motorola went through their response to the factual
       assertions, legal assertions, coverage evaluation, things of that nature, and presented a
       counterdemand to [Associated’s] offer of 4 million for what was then–by then, it was policy
       releases with an asbestos carveout.” Motorola demanded $7.9 million “for what he called an
       environmental buyout,” which Gillespie understood to refer to “the environmental and
       related toxic tort claims relating to the Valley sites and other sites,” meaning the claims
       concerning groundwater pollution in Arizona.
¶ 41       The representatives from Associated responded to some of the issues raised by Foradas,
       then Hehr made a 20-minute actuarial presentation on Associated’s behalf concerning the cell
       phone claims. The presentation culminated with a valuation of approximately $1.1 million
       for the cell phone claims. The representatives from Motorola were appreciative of Hehr’s
       analysis, but expressed skepticism as to whether the assumptions underlying the analysis
       would come to pass. They additionally raised concerns about “EME claims,” meaning claims
       concerning two-way radios and other types of products that would emit electromagnetic
       energy that would go beyond cell phones.
¶ 42       Associated made an offer of $5.5 million for “policy releases with carveouts for
       asbestos-related claims, cell phone claims and two-way radio claims.” Motorola did not
       accept, because “[e]ssentially, it was they did not believe that it was possible to come up with
       a firm analysis and exposure evaluation of those claims, that it had been discussed at levels
       up to and again including the CFO level at Motorola and that they simply weren’t willing to
       do that broad a release.” Associated made a subsequent offer of $5.1 million “[f]or
       environmental and toxic tort releases with those terms having to be defined in the
       agreement.” Motorola did not accept it and Foradas returned with a demand of $6.3 million,
       indicating that “essentially, a significant part of the difference in Motorola’s evaluation of
       that environmental toxic tort release and [Associated’s] evaluation of the toxic tort release
       was that Motorola believed that there was a premium in terms of money that would be
       appropriate for granting the broader toxic tort release that Motorola was at that point willing


                                                  - 10 -
       to give.” Associated agreed to the terms, but responded with a counteroffer of $6 million,
       which Motorola accepted.
¶ 43       Gillespie testified that he took handwritten notes at the March 19, 2003, meeting and that
       he prepared typed-up minutes relating to the meeting within two days of the meeting, both of
       which he did as part of his regular practice.
¶ 44       Gillespie testified that after the March 19, 2003, meeting, he prepared a draft settlement
       agreement to reflect the outcome of the meeting, which Gillespie emailed to Foradas on April
       7, 2003. The new agreement contained a “Definitions” section, which had not been contained
       in the previous drafts, including definitions for “claims” and “environmental/toxic tort
       claims.” The definition of “environmental/toxic tort claims” had three parts, and Gillespie
       testified that “[i]n general terms, one defines ‘environmental’ and ‘toxic tort.’ Two makes
       clear that certain things are within the definition of ‘environmental’ and ‘toxic tort.’ And
       three specifies certain things that would not–that could not be deemed to be within the
       definition of ‘environmental’ and ‘toxic tort.’ ”
¶ 45       Gillespie testified that after sending the draft to Motorola, Motorola responded by
       attempting to insert certain words into the definition of “environmental/toxic torts.” Where
       Associated’s draft referred to “pollution” and “contamination,” Motorola’s draft added the
       term “environmental,” making the terms “environmental pollution” and “environmental
       contamination,” and also added the term “into the environment” after “other environmental
       contaminants or pollutants.” Associated deleted Motorola’s insertions in its next draft.
       Motorola again attempted to add the same language, which Associated again deleted.
       Ultimately, Associated left the two insertions of the term “environmental” but did not permit
       the insertion of the term “into the environment” and Motorola agreed to the draft.
¶ 46       Gillespie testified that his concern as to Motorola’s attempt to add the term “into the
       environment” was that policyholders had been using that phrase to attempt to persuade courts
       to read pollution exclusions in insurance policies narrowly so as not to include exposure to
       hazardous substances indoors. Gillespie testified that he “was concerned that it might leave
       the agreement subject to a similar argument if there were disputes in the future and that
       would result in someone arguing for a more restrictive application of the release than had
       actually been agreed to.”
¶ 47       On cross-examination, Gillespie testified that in the presentation Associated made to
       Motorola in October 2002, one of the topics was “non-environmental claims,” during which
       asbestos and cell phone claims were discussed, and another topic was “environmental/toxic
       tort claims,” during which the Valley claims were discussed. Gillespie admitted that, during
       the “environmental/toxic tort” portion of the presentation, there was no claim discussed “that
       did not involve some form of actual or alleged release of [a] hazardous substance into the
       environment by Motorola.” Gillespie further admitted that, up to and through the draft
       Motorola submitted on March 17, 2003, the term “environmental/toxic torts” was a reference
       to the Valley litigation and similar claims.

¶ 48                                     2. Jean-Pierre Salgado
¶ 49       Jean-Pierre Salgado testified that in 2001 or 2002, he worked for Associated as a senior
       environmental consultant in Associated’s historical claims unit, which was a unit “that was
       put together by [Associated] to manage old policies that were general liability policies that
       had environmental coverage in them.” Salgado testified that he was present at two meetings

                                                 - 11 -
       between Associated and Motorola. The first meeting occurred in October 2002 and
       Associated presented an offer of $4 million for a policy buyback. The second meeting
       occurred in March 2003 at Motorola’s headquarters in Schaumburg. Salgado, Billeter, Shean,
       Gillespie, and Hehr were present on behalf of Associated, while Wojdula, Massey, and
       Foradas were present on behalf of Motorola. Foradas made a presentation “which was
       essentially Motorola’s response to [Associated’s] initial offer of settlement that took place
       several months before,” which was followed by Hehr’s presentation on cell phones. There
       was then a “back-and-forth discussion” concerning the scope and dollar amount of the
       release, with Billeter and Gillespie primarily speaking on behalf of Associated and Foradas
       and Massey speaking on behalf of Motorola. Salgado testified that there were no terms
       written at that point, but that “we settled for a buyback of the environmental and toxic tort
       claims into the future, we excluded the asbestos and cell phone part of it. And the amount
       that was agreed to was $6 million.”
¶ 50       Salgado testified that he did not work on asbestos or cell phone claims while at
       Associated because those would not have been considered environmental claims.

¶ 51                                            3. Eric Billeter
¶ 52       Eric Billiter testified that he was a claim manager at Associated and his team handled
       coverage actions involving asbestos, toxic tort, and environmental claims. The first
       settlement agreement proposed by Associated was for $4 million for a policy buyback. The
       $4 million valuation consisted of approximately $3.6 million for known claims, and,
       “[b]ecause the terms of that offer were policy buybacks *** we offered additional
       consideration for all the other exposures that Motorola might face in the future.” After
       Motorola indicated at the first meeting that it was unwilling to release asbestos claims, there
       was “back and forth” between the parties, culminating in another draft settlement agreement
       proposed by Associated, which was a “complete release” with a carveout for asbestos claims
       for $4 million. The proposed settlement agreement contained a “whereas” clause relating to
       the Valley litigation, but Billeter testified that the clause did not limit the scope of the release.
¶ 53       Billeter testified that on March 17, 2003, two days before a scheduled meeting with
       Motorola, Motorola sent a draft settlement agreement that was “a much more limited
       release.” The release was “an environmental release” and also released claims similar to the
       Valley claims. Associated did not accept this offer. At the March 19 meeting, Billeter, Shean,
       Salgado, Gillespie, and Hehr were present on Associated’s behalf, while Foradas,
       Montgomery, Massey, Milne, and Wojdula were present on Motorola’s behalf. Billeter
       testified that Associated initially rejected Motorola’s offer because the representatives were
       “[d]isappointed in the settlement terms and the dollar amount that they wanted from us.”
       However, by the end of the meeting, they ultimately settled for a “full environmental and full
       toxic tort release under the policies,” with carveouts for asbestos, cell phones, EME claims,
       and product claims. Billeter testified that clean room claims would have been released
       “[b]ecause it’s covered under the definitions in the agreement.” Billeter further testified that
       Motorola’s initial offer changed “[i]n terms of dollars and scope of the release that they were
       willing to provide to us.”
¶ 54       Billeter testified that at the second meeting, after Foradas’ presentation on Motorola’s
       behalf, there was a break and then Associated responded to some of the points raised by
       Foradas in his presentation and Hehr made a presentation on cell phone litigation. Following

                                                    - 12 -
       Hehr’s presentation, Motorola’s representatives indicated that they could not release cell
       phone claims and for the first time indicated that they were also concerned about Motorola’s
       exposure relating to two-way radios. Associated made a counterproposal for $5.5 million
       with carveouts for asbestos, cell phones, and two-way radios. Motorola did not accept the
       offer and indicated that there were also concerns about EME claims and Motorola would not
       release products claims. After another break, Associated came back with another
       counterproposal of $5.1 million “for a complete environmental and toxic tort claim release.
       And we were carving out asbestos, cell phones and EME claim[s] and products at that point.”
       Billeter testified that the terms used “had to be defined in the agreement because now we’re
       at a different point of what the agreement was going to be.” The “environmental and toxic
       tort” offer Associated was proposing “was broader than what Motorola had proposed” in that
       “[i]t was a complete environmental and toxic tort claim release that they could never tender
       another environmental or toxic tort claim subject to how those terms were going to be
       defined in the settlement agreement.” Associated made the offer at that time because “at that
       point in time, we knew we weren’t going to be able to get a complete policy buyback. You
       know, it was the end of the negotiations. They were adamant they couldn’t release product
       claims or cell phone claims or asbestos, and we always wanted through the history of the
       negotiations the broadest release we could possibly get.” Motorola did not accept the offer,
       but made a counterproposal of $6.3 million, noting that “there was some additional
       consideration in that for unknown toxic tort claims.” Associated responded with an offer of
       $6 million, which was accepted. Gillespie then took the lead in drafting the settlement
       agreement, which was sent to Motorola.
¶ 55       Billeter testified that he composed an email to senior management concerning the
       settlement a few days later “[t]o notify management that the case had settled and these were
       the terms of the settlement.”
¶ 56       On cross-examination, Billeter admitted that clean room claims were never discussed
       during negotiations even though Shean handled clean room cases at that time for a different
       insured, IBM. Billeter testified that Associated never raised the issue of clean room claims,
       “[b]ut we asked them what were the things that they were worried about.”

¶ 57                                       B. Zurich Witnesses
¶ 58                                      1. Steven Dale Pearson
¶ 59       Steven Dale Pearson testified that he was an attorney at Meckler, Bulger, Tilson, Marick
       & Pearson and represented Zurich in connection with the Valley litigation. Pearson became
       involved with the Valley litigation in 1994, and the disputes between Motorola and Zurich
       concerning coverage continued for over a decade until, in 2001, Motorola and Zurich began
       to explore the possibility of settling their disputes. In discussing settlement, Pearson spoke
       primarily with Foradas.
¶ 60       There was an initial mediation session in May 2002 in Washington, D.C., where the
       conversation focused on the Valley litigation. Zurich demanded $57 million from Motorola
       “which was the costs that had been expended thus far in defending Motorola in the
       underlying litigation on the premise that notice was late, they were never entitled to coverage
       in the first instance and therefore would not have been entitled to any defense costs.”
       Motorola, by contrast, demanded $56 million from Zurich, “representing settlement of the
       underlying litigation that was at issue and the sites that they put us on notice of.” Thus,

                                                 - 13 -
       Motorola and Zurich were approximately $114 million apart before the mediation. The
       mediation was unsuccessful.
¶ 61       A second mediation session was set for November 2003. Zurich reduced its demand to
       $19 million and requested a release concerning the Valley sites and 56 related sites. Motorola
       reduced its demand to $23 million and requested both parties release all claims relating to the
       Valley litigation and the 56 sites, with an exception for asbestos claims or product liability
       claims. In addition to the letter sent by Motorola outlining the demand, Motorola also
       included a copy of a private demand communicated to the mediator at the outset of the
       mediation process; Pearson testified that he learned from the private demand letter “that Mr.
       Foradas was also talking about an environmental buyout of some sort regarding matters in
       addition to those sites that were what I call the known sites at that time,” which represented a
       “possible” expansion of the scope of settlement discussion. Motorola also included a copy of
       the Associated release, which Zurich had requested. In reading the Associated release
       Pearson’s “reaction was this changed the scope of what we were talking about from a
       settlement standpoint because this was much broader than the scope that we had been talking
       about before. This agreement did not speak to the Valley litigation, did not speak to the
       underlying litigation that comprised the Valley litigation and the 56 sites which were all of
       the terms that I had been talking about but rather something much broader. And I was very
       pleased to get it because I saw it as an opportunity now to break through the logjam from the
       settlement standpoint.”
¶ 62       Pearson testified that at the mediation in November 2003, he, Bob Edwards, Ruth Kopec,
       and Brent Graber were present on behalf of Zurich and Foradas, Montgomery, and Massey
       were present on behalf of Motorola. Pearson testified that he “had an assurance going into
       that mediation that Motorola would accept the same terms–terms, language of the settlement
       agreement, with my client that they had agreed to with” Associated, so the entire focus of the
       mediation was on the dollar amounts. The mediation resulted in the parties agreeing to a
       “walkaway,” with neither Zurich nor Motorola paying any money.
¶ 63       Pearson testified that at the time, he examined the release, and there was no limitation to
       outdoor claims. Instead, he testified that “[w]e were settling indoor claims to exposure to
       [toxic chemicals] as part of the underlying litigation,” since several of the plaintiffs in the
       Valley litigation had alleged exposure to toxic chemicals “in their homes in their drinking
       water and showering in it in their homes.” Pearson further testified that no one told him that
       that the release was intended to release only outdoor claims or that the carveouts for asbestos
       and cell phone claims were not necessary but were only added as a precaution. Pearson was
       also unaware of the content of the negotiations between Associated and Motorola that
       resulted in the Associated release.

¶ 64                                        2. Robert Edwards
¶ 65        Robert Edwards testified that he worked for Zurich’s environmental claims unit until
       2008. The environmental claims unit was comprised of three groups: the pollution group, the
       mass litigation group, and the legal services group; asbestos claims were handled by the mass
       litigation group, and Zurich considered the claims handled by any of the three groups to be
       environmental claims. While at Zurich, Edwards worked for the mass litigation group for a
       short time, then moved to the pollution group. While in the pollution group, Edwards worked
       on the Valley litigation while Motorola and Zurich were engaged in coverage litigation.

                                                  - 14 -
       Edwards attended the November 2003 mediation as a corporate representative of Zurich with
       authority to settle and Kopec, Graber, and Pearson also attended the mediation on Zurich’s
       behalf.
¶ 66       Edwards testified that he received the Associated release prior to the mediation and
       considered it a “game changer in that the [Associated] release was an effort to provide a full
       environmental and toxic tort release with the exception of cell phone and product cases as
       well as asbestos.” At the mediation, the parties negotiated until “eventually, it became a zero
       sum whereby no side ended up getting any type of a payout, but in exchange for that, there
       was a broad environmental release that basically included all types of environmental claims
       including toxic tort with the only carveout being along the lines that I previously discussed
       and mentioned which was products and specifically cell phones as well as asbestos.”
¶ 67       On cross-examination, Edwards testified that he did not participate in any discussions
       with anyone from Motorola concerning the scope of the release.

¶ 68                                      C. Motorola Witnesses
¶ 69                                        1. Michael Foradas
¶ 70        Michael Foradas testified that he was a partner at Kirkland & Ellis and was Motorola’s
       lead outside insurance coverage counsel in the coverage litigation concerning the Valley
       claims. He worked with Tom Campbell on the litigation, and Campbell handled the
       day-to-day matters. Foradas’ primary contact in the Motorola law department concerning the
       litigation was Kathleen Massey.
¶ 71        Foradas testified that the Valley litigation was settled in late 2000 to 2001, and in early
       2002, Motorola began to consider the possibility of resolving the coverage litigation without
       further litigation. Motorola’s first effort was with Zurich, which was Motorola’s primary
       insurance carrier for many years. The initial mediation took place in spring 2002. Motorola’s
       first demand was for $35 million and proposed “a full environmental release for the sites that
       were in the Valley and the other company plant sites and remediation sites that we were
       discussing”; Foradas testified that an “environmental release would mean that Zurich was
       essentially absolved from any further liability for the Valley cases and for the other
       environmental pollution sites.” Zurich demanded $52.2 million and proposed a release that
       was “essentially [a] mirror image[ ]” of Motorola’s proposed release; Foradas testified that
       “[t]hey were the same release. We were talking about the same things.” The first mediation
       “was a bust,” as the parties were over $100 million apart and “[i]t was apparent very quickly
       that we weren’t going to get anywhere at this mediation, and we agreed that we should
       adjourn indefinitely.”
¶ 72        Motorola turned its attention to Associated, which had approached Motorola through
       Billeter about a settlement. Billeter informed Foradas that Associated would be interested in
       a full policy buyout, but Foradas responded that Motorola was not interested in that kind of
       release. Foradas informed Billeter that “we were interested in an environmental buyout or
       release, that we had–Motorola had a number of environmental sites, 50 some odd sites. He
       was obviously well aware of the Valley sites, but there were a number of others. Motorola
       had been managing those sites for some period of time. We were willing to negotiate a
       resolution of all those claims relating to those sites. We had, I think–we had our arms around
       in pretty good fashion the environmental claims so we were prepared to do that kind of
       settlement.” Foradas also informed Billeter “on many occasions from the outset of the

                                                  - 15 -
       litigation and also through our efforts to settle the case that we really had no interest in
       anything broader than that, that the company faced–it was a technology company, it faced
       sort of [an] uncertain future with regard to the kinds of claims it may face. We couldn’t really
       value those claims, it would be both difficult to value them and probably impossible given
       that we had very little litigation at the time and that we weren’t interested in releasing our
       insurance coverage that went back historically for, you know, claims that we really couldn’t
       put a value on.”
¶ 73        Foradas testified that “from the outset of our discussions with [Associated], one of the
       categories of claims we discussed resolving in the category that Motorola was interested in
       resolving were environmental and associated toxic tort claims so pollution claims at the
       various sites, clean up costs associated with those claims whether–usually ordered by the
       government under the CERCLA or RCRA programs and then also private property damage
       and bodily injury claims like those that had been asserted in the Valley by individuals who
       claimed either property damage from environmental contamination or personal injuries
       relating–bodily injuries relating to environmental contamination at various Motorola plant
       sites.” This understanding of “environmental/toxic tort claims” was the way that Associated
       “described what they were talking about from day one.”
¶ 74        Foradas met with Associated in October 2002, where Associated offered $4 million,
       “$3.6 million and change for the environmental and toxic tort piece, and then they were
       prepared to pay us $350,000 roughly for a release of every other kind of claim Motorola
       could ever make under those insurance policies.” At the October 2002 meeting, there was no
       discussion of any clean room type of claims asserted against Motorola. Although Foradas
       knew what clean room claims were at that point, he had never heard of clean room claims in
       reference to Motorola.
¶ 75        After the meeting, Associated and Motorola continued communicating. Foradas noted in
       an email to Billeter that while Motorola was preparing information that Associated had
       requested, “we weren’t really interested in doing anything that included anything other than
       an environmental buyout and that’s what I said.” Foradas testified that the “environmental
       buyout” was “[a] buyout for all the pollution claims relating to the various plant sites and we
       would certainly consider the associated toxic tort claims that may come with those as they
       had proposed from the outset.” Foradas testified that this environmental buyout “was our
       position throughout the negotiations” and Motorola never changed its position on that issue.
¶ 76        Foradas testified that he had explained to Associated that Motorola was not interested in a
       buyout of cell phone claims because “we simply couldn’t value the other claims. *** [W]e
       simply weren’t prepared to release what was pretty valuable insurance for claims that we
       couldn’t value at this juncture.”
¶ 77        Associated sent a proposed settlement agreement to Motorola which would have
       excluded asbestos claims from the scope of the release but would have released cell phone
       claims. Foradas and Campbell drafted a counterproposal leading into the next settlement
       meeting.
¶ 78        Motorola and Associated again met on March 19, 2003. Foradas, Massey, Wojdula,
       Milne, and Montgomery attended on behalf of Motorola, while Billeter, Gillespie, and
       several other individuals were present on behalf of Associated. Foradas did the bulk of
       Motorola’s presentation and focused on Associated’s financial analysis of the environmental
       claims; “[w]e focused solely on those claims. And the reason for that is identified in the next

                                                  - 16 -
       bullet [of the presentation] which is we told them that while we understood what they would
       like to have, if they wanted to do a settle[ment], we weren’t interested in a policy buyout or a
       release of even particularly asbestos and cell phone claims. And then we made clear what we
       were willing to do which was to grant them a full release for all past, current and future
       hazardous waste claims which were the environmental/toxic tort claims that we’d been
       discussing and were in the settlement drafts that had been exchanged.”
¶ 79       Foradas testified that there was some discussion of what the term “full environmental
       buyout” meant, but that “[w]e didn’t have to discuss it too much because we had been
       discussing it for some period of time, exchanged drafts, had defined that in the ‘whereas’
       clauses as an environmental/toxic tort release. You know, we’d made it clear that’s what we
       were interested in doing, we were prepared to essentially because we thought we could value
       and both parties thought they could value the various company pollution sites and the
       prospect of, you know, tort claims relating to them that we were prepared to release those
       kinds of claims.” Motorola’s position on the scope of a release it was willing to grant did not
       change during the meeting.
¶ 80       After further discussion, the parties agreed to settle for $6 million; the scope of the
       release was “[a] full environmental buyout, that is a buyout of all the environmental sites
       that–the pollution claims relating to those sites both sort of governmental cleanup claims and
       associated toxic tort property damage and bodily injury claims. And we agreed–and I believe
       our draft made clear because we thought it was a negotiating point that would give[ ]
       [Associated] some comfort, our draft provided for and we were prepared to essentially agree
       to release those whether they existed now or would come down the road in the future.” At the
       March 19 meeting, there was no discussion of clean room claims and Foradas had not heard
       of any clean room claims against Motorola.
¶ 81       Foradas testified that after the meeting, Campbell (for Motorola) and Gillespie (for
       Associated) worked on drafting the release, and the release was executed in June 2003.
¶ 82       Foradas testified that after the agreement with Associated, Motorola turned back to
       Zurich. The parties had a second mediation session, and Foradas, Massey, Wojdula, Milne,
       and Montgomery were present on behalf of Motorola, while Pearson, Graber, and several
       other individuals were present on behalf of Zurich. Prior to the mediation, Motorola sent
       Zurich a copy of the Associated release because “we wanted the same deal to apply to both
       the insurance companies.” In a letter attached to the Associated release, Foradas stated that
       “under the deal we have with [Associated], they paid Motorola 6 million for a comparable
       environmental release to the one that Mr. Pearson and I had just said we’d be interested in
       doing.” At the mediation, the focus was on the dollar amounts at issue, since “we made clear
       in our correspondence that we were going to do the [Associated] deal, that that’s what we
       wanted.” The parties agreed to “[a]n environmental buyout like what we did with
       [Associated] for environmental pollution sites and associated toxic tort claims, and we agreed
       essentially–we agreed to walk away, no money would exchange hands.” There was no
       discussion of clean room claims against Motorola, and Foradas was not aware of any clean
       room claims against Motorola at that point.

¶ 83                                    2. Kathleen Massey
¶ 84       Kathleen Massey testified that she was an in-house lawyer for Motorola until 2011,
       responsible for corporate litigation. Massey was involved with clean room matters

                                                  - 17 -
       concerning Motorola, which began in approximately 2007 or 2008, years after the release at
       issue in the instant case. Massey was also involved in the Valley coverage litigation that
       resulted in the settlements with Associated and Zurich.
¶ 85       Massey testified that Motorola first attempted mediation with Zurich in 2002, but “[i]t
       was a complete failure,” as the two were approximately $100 million apart. At that point,
       Foradas suggested that Motorola commence discussions with Associated. Motorola invited
       Associated to its offices in Schaumburg, and Associated made a presentation in which
       Associated indicated that it “wanted a complete policy buyout for their policies with
       Motorola.” Motorola was not interested in such a buyout “at all.” Instead, Motorola was
       willing to grant an environmental buyout. Motorola and Associated met a second time, and
       reached an agreement in which “[Associated] would pay Motorola $6 million and in
       exchange would be getting an environmental buyout from Motorola on its policies.” After
       Motorola settled with Associated, it turned its attention to Zurich. Motorola provided Zurich
       with a “take-it-or-leave-it situation” in which Zurich would either agree to the same terms as
       Associated “or there was no deal.”
¶ 86       On cross-examination, Massey testified that she did not have a specific recollection as to
       who spoke on behalf of Associated or Motorola at the March 19 meeting, nor did she have
       any notes or know of anyone at Motorola who took notes at the meeting. Massey further
       testified that she was unaware of any clean room cases against Motorola in 2003, despite the
       fact that a filing with the Securities and Exchange Commission concerning Motorola’s
       spinning off its semiconductor business listed potential claims concerning “ ‘clean room
       environments’ ” as a “ ‘significant risk factor.’ ”

¶ 87                                       3. Thomas Campbell
¶ 88       Thomas Campbell testified that he was an attorney at Kirkland & Ellis in 2001 and
       worked on the Valley coverage litigation. His role in the litigation was “to support Mr.
       Foradas at Kirkland and really do whatever a junior partner would need to do for him.”
       Campbell did not attend the October 2002 meeting between Motorola and Associated, but did
       assist in preparing a response to Associated’s presentation at that meeting, which included
       working on Motorola’s presentation for the March 19, 2003, meeting. Campbell did not
       attend the March 19 meeting, but Foradas informed him after the meeting that the parties had
       reached a deal and that Campbell was to put together the final agreement. Foradas informed
       Campbell that “the deal we were talking about was we were resolving coverage issues with
       [Associated] relating to the Valley litigation and other sites that we had identified for those
       types of claims. We weren’t resolving the other stuff that [Associated] originally wanted us
       to resolve in their proposal.” Campbell then exchanged a number of draft agreements with
       Gillespie, and the final settlement agreement was executed.
¶ 89       Campbell testified that one of the changes he suggested was to the definition of
       “environmental/toxic tort claims,” because “we were trying to make changes to make sure
       that we were documenting the deal that had been struck, that we were building in
       language–and it’s not just here, it’s elsewhere as well–to make sure that what we were
       talking about was the Valley litigation and the Valley litigation type claims, the 52nd, 56th,
       82nd Street. And so we were trying to make those types of distinctions clear.”



                                                 - 18 -
¶ 90                                        D. Trial Court Ruling
¶ 91       On January 31, 2013, the trial court issued a written memorandum and judgment order in
       which it indicated that “[t]his cause came to be heard by the Court, sitting without a jury, to
       determine whether certain Releases entered into between Plaintiff and Defendants Associated
       Indemnity Corporation (a/k/a Fireman’s Fund) and Zurich Insurance Company, separately,
       apply to a category of civil lawsuits referred to as ‘clean room cases.’ ” The court stated:
                    “The Court previously found the Releases to be ambiguous to the extent that the
               term ‘environmental/toxic tort’ (as defined therein) is susceptible to more than one
               reasonable interpretation when considering whether the Release applied to clean room
               cases. The Court has weighed and considered the testimony of the witnesses, judged
               their credibility by taking into account their manner and demeanor while testifying
               and, further, considered the reasonableness of their testimony in light of all the
               admissible evidence together with the exhibits offered and admitted into evidence.
               The Court did not consider any single utterance or document as definitive or
               conclusive. Reasonable inferences were drawn based on the totality of the evidence,
               testimonial and documentary, and all evidence was given appropriate weight and
               consideration in order to reach the instant judgment.”
¶ 92       The court noted that “[a]t all times relevant, Plaintiff and Defendants [were] sophisticated
       entities represented by knowledgeable, competent attorneys and staffed with personnel
       experienced in the technicalities and complexities of both the manufacturing process
       employed by Plaintiff and the corresponding risks involved in insuring Plaintiff’s business.”
       The court further noted that the “fundamental subject matter giving rise to the execution of
       the Releases” was litigation referred to as the “Valley litigation,” which involved claims
       against Motorola concerning contamination of landfills resulting in alleged bodily injury and
       property damage generally associated with groundwater contamination caused by toxic
       substances. The court found:
                    “The Court finds each Defendant was motivated and desired to rid itself of any
               future liability under specific, known policies of insurance previously issued in favor
               of Plaintiff. Each sought a ‘complete policy buyout’. Plaintiff was motivated to
               recover reimbursement and/or indemnification for its costs in the Valley and coverage
               litigation recognizing the risks involved in continued coverage litigation. Plaintiff did
               not agree to a ‘full policy buy out’ with either Defendant. Although it could
               comfortably evaluate its exposure to future ‘Valley like litigation’ it could not
               commercially evaluate or quantify its exposure to certain claims, including cell
               phones, asbestos and product liability claims. Through negotiation the parties agreed
               to ‘carve out’ from the Releases claims relating to cell phones, asbestos and product
               liability. All parties, Plaintiff and Defendants, were aware that IBM had been the
               subject of clean room claims starting in the [sic] mid-1990. No party discussed or
               negotiated the question of whether clean room type claims would or would not be
               included within the scope of either Release. The Court draws a reasonable inference
               that the failure to raise or discuss whether clean room cases were within the scope of
               either Release was either an oversight by one or all parties or it was an intentional
               decision not to bring the subject up in the course of the release negotiation process.
               There is no evidence from which the Court could reasonably conclude that a subject


                                                  - 19 -
              that was not discussed was within the contemplation of any party at the time of
              negotiation or execution of either Release.”
¶ 93       The court further noted:
                   “The Court concludes there were valid reasons not to raise the issue of whether
              clean room cases were within the scope of the Release. From the Defendants’
              perspective, millions of dollars had been spent and millions more might be spent
              dealing with the ongoing Valley coverage litigation. To raise the issue of clean room
              cases being released, when Motorola expressly stated it was unwilling to agree to
              release coverage for ‘claims’ it could not price, would surely eliminate the possibility
              [of] resolving the coverage litigation. Better to leave unknown, potential future claims
              relating to clean room cases for another day. From the Plaintiff’s perspective, it had
              no known clean room claims, and to inject that issue into coverage litigation
              settlement discussions could possibly kill any reasonable chance of an acceptable
              resolution of its Valley and coverage claims thereby frustrating its goal of terminating
              all aspects of the Valley litigation. Better to leave unknown, potential future claims
              relating to clean room cases for another day. It was in the interest of all parties to
              fight the clean room claims at a later time, if ever.”
¶ 94       The court ultimately concluded:
                   “Each Defendant knew which policy of insurance was involved in the Valley
              litigation and under which Plaintiff claimed coverage. Each party knew the limits of
              each policy and to what extent each policy was or would be impacted at the time of
              their negotiations and going forward. Although the Defendants may have desired a
              ‘full policy buyout’ Motorola never agreed to same. There is no persuasive testimony
              to support an inference or conclusion that Motorola would have agreed to a full policy
              buyout especially where it would not forego coverage for claims it could not
              reasonably anticipate or intelligently price. Given the sophistication of the
              Defendants, had it been the intention of the parties to forever terminate either
              Defendant’s obligations under specific policies, either could have simply and directly
              stated in the Release a clear, definite provision listing each specific policy issued in
              favor of Plaintiff and the fact of termination thereof upon execution of the Release.
              This glaring omission supports the inference that there was no agreement or
              contemplation by the parties to include the clean room cases within the scope of
              either Release.”
       Accordingly, the trial court entered judgment in favor of Motorola on each defendant’s
       affirmative defense and counterclaim concerning the applicability of the release.

¶ 95                                    VI. Posttrial Proceedings
¶ 96       On February 13, 2013, defendants filed a motion before Judge Margaret Brennan for a
       finding under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). On March 14, 2013,
       defendants also filed a motion to stay the proceedings pending resolution of an appeal on the
       release issue.
¶ 97       On April 12, 2013, Motorola filed a motion for summary judgment against defendants on
       the issue of whether defendants had a duty to defend Motorola in the clean room litigation



                                                 - 20 -
        and also sought to stay litigation over coverage defenses pending a resolution of the clean
        room cases.
¶ 98        On May 6, 2013, the trial court granted defendants’ motions and found that there was no
        just reason to delay enforcement of or appeal from the court’s orders of April 13, 2012,
        December 10, 2012, and January 31, 2013, and also ordered that no further proceedings of
        any nature would take place pending the resolution of defendants’ appeal. This appeal
        follows.

¶ 99                                           ANALYSIS
¶ 100       On appeal, defendants claim that the trial court erred in not granting summary judgment
        in their favor and erred in finding that the claims had not been released after a bench trial.
        Additionally, defendants claim that the trial court erred in denying their joint motion to
        compel discovery of the CRSP Notebook.

¶ 101                                       I. Summary Judgment
¶ 102       Defendants first claim that the trial court erred in not granting summary judgment in their
        favor. Defendants argue that the trial court should have found the releases to be
        unambiguous, instead of finding them to be ambiguous as to the meaning of the term
        “environmental/toxic tort claims” and setting the issue for trial. A trial court is permitted to
        grant summary judgment only “if the pleadings, depositions, and admissions on file, together
        with the affidavits, if any, show 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
        2010). The trial court must view these documents and exhibits in the light most favorable to
        the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315
        (2004). We review a trial court’s decision to grant a motion for summary judgment de novo.
        Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo
        consideration means we perform the same analysis that a trial judge would perform. Khan v.
        BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 103       “Summary judgment is a drastic measure and should only be granted if the movant’s right
        to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.
        However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary
        judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). A
        defendant moving for summary judgment bears the initial burden of proof. Nedzvekas v.
        Fung, 374 Ill. App. 3d 618, 624 (2007). The defendant may meet his burden of proof either
        by affirmatively showing that some element of the case must be resolved in his favor or by
        establishing “ ‘that there is an absence of evidence to support the nonmoving party’s case.’ ”
        Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
        (1986)). In other words, there is no evidence to support the plaintiff’s complaint.
¶ 104       “ ‘The purpose of summary judgment is not to try an issue of fact but *** to determine
        whether a triable issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d
        696, 708 (2002) (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on
        any basis appearing in the record, whether or not the trial court relied on that basis or its
        reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).



                                                   - 21 -
¶ 105       A release “ ‘is the abandonment of a claim to the person against whom the claim
        exists.’ ” Thornwood, Inc. v. Jenner & Block, 344 Ill. App. 3d 15, 21 (2003) (quoting Hurd v.
        Wildman, Harrold, Allen & Dixon, 303 Ill. App. 3d 84, 88 (1999)); Fuller Family Holdings,
        LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 614 (2007). It is a contract and is therefore
        governed by contract law. Farm Credit Bank of St. Louis v. Whitlock, 144 Ill. 2d 440, 447
        (1991) (citing Polo National Bank v. Lester, 183 Ill. App. 3d 411, 414 (1989)). Where a
        contract is clear and explicit, a court must enforce it as written, and the meaning of the
        contract, as well as the intention of the parties, must be gathered from the document without
        the assistance of extrinsic aids. Rakowski v. Lucente, 104 Ill. 2d 317 (1984); Fuller Family,
        371 Ill. App. 3d at 614; Shultz v. Delta-Rail Corp., 156 Ill. App. 3d 1, 10 (1987). However, if
        the language of the contract is susceptible to more than one meaning, it is ambiguous.
        Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). If the contract language is ambiguous, a
        court can consider extrinsic evidence to determine the parties’ intent. Thompson, 241 Ill. 2d
        at 441.
¶ 106       In the case at bar, the trial court found the term “environmental/toxic tort claim” to be
        ambiguous and set the matter for trial to determine whether the clean room cases were
        encompassed by the scope of the release. Defendants argue that the trial court should have
        granted their motions for summary judgment because the unambiguous language of the
        releases demonstrated that the clean room cases were released. Under the releases,
        “environmental/toxic tort claim” was a term that was defined to mean:
                 “any past, present and future Claim involving Motorola, whether presently known,
                 unknown or unknowable, involving actual, alleged, threatened or potential property
                 damage (or injury to property or damage to natural resources including but not
                 limited to ‘NRD’ or ‘natural resource damages’), bodily injury (including sickness,
                 disease, disability or death at any time resulting therefrom), mental injury, mental
                 anguish, shock, emotional distress, fear of injury (including Claims seeking medical
                 monitoring or damages for care and loss of services), personal injury and claims to
                 recover clean-up or remediation costs (including but not limited to costs incurred and
                 sums expended, or which may in the future be incurred or expended for investigation,
                 removal, distribution, treatment or containment), involving actual, alleged, threatened
                 or potential environmental pollution, environmental contamination or other injurious
                 environmental conditions, including exposure to smoke, vapors, soot, fumes, acids,
                 alkalis, toxic chemicals, liquids or gases, waste materials or other environmental
                 contaminants or pollutants, petroleum or natural gas or derivatives thereof, including
                 without limitation, any hazardous waste as defined in 42 U.S.C. § 9601 or any
                 substance regulated now or in the future by any government entity to protect human
                 health or the environment from injury, damage or contamination.”
        Defendants claim that the clean room cases fall under “other injurious environmental
        conditions, including exposure to *** toxic chemicals, liquids or gases, *** including ***
        any substance regulated now or in the future by any government entity to protect human
        health or the environment from injury, damage or contamination.” By contrast, Motorola
        argues that the injuries in the clean room cases do not involve “other injurious environmental
        conditions,” because there was no release of a substance into the environment as would be
        present in a traditional environmental claim.



                                                   - 22 -
¶ 107       We agree with defendants that it is reasonable to interpret the releases to encompass clean
        room claims. However, we also agree with the trial court’s conclusion that it is unclear
        whether the definition of “environmental/toxic tort claims” necessarily encompasses the
        clean room claims. Since the language is susceptible to more than one meaning, it is
        ambiguous. See Thompson, 241 Ill. 2d at 441. Accordingly, the trial court did not err in
        denying summary judgment.
¶ 108       Defendants’ argument that the releases are unambiguous is based on: (1) dictionary
        definitions of the word “environmental”; (2) inclusion of “literally all government entities”
        (emphasis omitted) in the definition, thereby making clear the releases’ broad scope; and (3)
        the carveouts present in the definition of “environmental/toxic tort claim.” Defendants also
        claim that there is nothing in the releases limiting environmental claims to outdoor claims.
¶ 109       First, defendants point to several dictionary definitions that they claim support their
        reading of the term “environmental.” To give words their plain, ordinary, and popular
        meanings, it is proper to consult a dictionary. See Founders Insurance Co. v. Munoz, 237 Ill.
        2d 424, 436 (2010); Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d
        352, 366 (2006). Thus, defendants point to dictionary definitions indicating that
        “environment” is a broad term encompassing the general circumstances surrounding an
        individual. For instance, Merriam-Webster’s dictionary defines “environment” as “the
        circumstances, objects, or conditions by which one is surrounded.” Merriam-Webster Online
        Dictionary, http://www.merriam-webster.com/dictionary/environmental (last visited May 27,
        2015). See also MacMillan Dictionary, http://www.macmillandictionary.com/us/dictionary/
        american/environment (last visited May 27, 2015) (defining “environment” as “the place in
        which people live and work, including all the physical conditions that affect them”).
        However, defendants’ dictionary definitions are not the only definitions of the term
        “environment.” For instance, MacMillan’s dictionary also defines “environment” as “the
        natural world, including the land, water, air, plants, and animals, especially considered as
        something that is affected by human activity.” MacMillan Dictionary,
        http://www.macmillandictionary.com/ us/dictionary/american/environment (last visited May
        27, 2015). See also The American Heritage Dictionary of the English Language,
        https://www.ahdictionary.com/ word/search.html?q=environment (5th ed. 2014) (defining
        “environment” as “[t]he totality of the natural world, often excluding humans”). Thus, simply
        looking at dictionary definitions does not provide a clear answer as to whether the clean
        rooms were “environments” for purposes of the releases.
¶ 110       Defendants also argue that the releases’ broad language indicates that clean room cases
        were covered. Defendants point to the releases’ language that covered injuries due to
        exposure to “any substance regulated now or in the future by any government entity to
        protect human health or the environment from injury, damage or contamination.” In its brief,
        Associated argues that “[t]he inclusion of literally all government entities reflects just how
        broad the Release was intended to be, and indicates, beyond question, that it encompasses
        chemical exposure claims involving substances regulated by OSHA to protect workers from
        harm in workplace environments, which of course the clean rooms were (and are).”
        (Emphasis in original.) However, as Motorola notes, the broad language of the release is
        limited by the requirement that the injury must involve “injurious environmental conditions.”
        Thus, it would still be only exposure to a substance regulated by a government entity
        occurring in injurious environmental conditions that would be covered by the release. The


                                                  - 23 -
        language cited by defendants does not shed any light on the meaning of the term
        “environmental” itself. If anything, it cuts against their argument, because a broad reading of
        “environmental” coupled with the inherent broadness of “any substance regulated now or in
        the future by any government entity” would result in the release of claims involving, in
        Motorola’s words, “any type of exposure, anywhere, through any means.” “[W]hen parties
        agree to and insert language into a contract, it is presumed that it was done purposefully, so
        that the language employed is to be given effect.” Thompson, 241 Ill. 2d at 442. Thus, the
        term “environmental” must be some sort of limitation. At best, the broadness of the language
        remains unclear.
¶ 111       Finally, defendants point to the carveouts for asbestos, cell phones, and products liability
        as evidence that indoor claims are contemplated under the releases. The releases, in addition
        to the definition of “environmental/toxic tort claim” in subpart (i) of the definition, included
        two additional subparts providing:
                    “ii. ‘Environmental/Toxic Tort Claim(s)’ shall include Claims asserted under
                CERCLA, RCRA or equivalent state statutes or common law, whether at law or
                equity, and whether sounding in tort, contract, equity, nuisance, trespass, negligence
                or strict liability. ‘Environmental/Toxic Tort Claim(s)’ further includes, but is not
                limited to, demands for costs incurred and sums expended, or which may in the future
                be incurred or expended, for investigation, removal, distribution, treatment or
                containment of environmental contamination, or incurred in relation to environmental
                clean-up or remediation costs, whether known or unknown, including but not limited
                to Claims involving the properties or operations of Motorola.
                    iii. The term ‘Environmental/Toxic Tort Claim’ shall not include any past, present
                or future Claim or portion of any Claim against Motorola:
                         a. alleging or involving injury or damage caused or allegedly caused by or
                    arising from a product sold by Motorola, a product containing materials sold by
                    Motorola, or a product that contains component parts manufactured by Motorola,
                    including but not limited to two-way radios, cellular telephones, or any product
                    that utilizes or emits RF radiation, in which such injury or damage occurs or is
                    alleged to have occurred after the product or component part has been sold by
                    Motorola or after such product or component part has left Motorola’s possession,
                    custody, or control, and before the product has become a waste product or become
                    part of a waste product; or
                         b. alleging or involving injury or damage caused or allegedly caused by,
                    arising from or related in any way to asbestos or asbestos-containing materials.”
        Defendants specifically point to the carveouts of subpart (iii) to argue that the releases
        contained a broad reading of the term “environmental.” They argue that the releases must
        encompass indoor claims because, otherwise, there would have been no need to carve out
        asbestos and cell phone claims, both of which involve indoor exposure.
¶ 112       “A court will not interpret a contract in a manner that would nullify or render provisions
        meaningless, or in a way that is contrary to the plain and obvious meaning of the language
        used.” Thompson, 241 Ill. 2d at 442. Thus, defendants correctly note that there must be some
        meaning behind the inclusion of the carveouts, and their argument that the carveouts support
        a reading of the term “environmental” that would encompass indoor claims is a reasonable
        one. However, there is also a reasonable interpretation of the presence of the carveouts that

                                                   - 24 -
        would not lead to defendants’ desired result. As Motorola notes, subparts (ii) and (iii) can be
        read as examples of claims that are encompassed by the release and claims that are not
        encompassed by the release, respectively. Subpart (ii) makes clear that certain types of
        claims are encompassed by the release. Associated explains in its brief that at the time the
        releases were executed, “there was substantial litigation over how costs incurred in response
        to government demand letters/claims for equitable relief should be treated under insurance
        policies,” and that “far from being meaningless or redundant, Section 1(B)(ii) clarified
        Section 1(B)(i), which made no specific reference at all to CERCLA, RCRA, or other such
        statutes, and the special issues they present.” Thus, subpart (ii) took claims that may have
        otherwise been questionable, and expressly encompassed them under the release. Similarly,
        subpart (iii) can be read as taking claims that may have otherwise been questionable, and
        expressly excluded them from the release. In other words, while defendants’ interpretation is
        reasonable, it is also reasonable to interpret subparts (ii) and (iii) as providing clarification on
        claims that may otherwise have been the source of disagreement between the parties. Thus,
        the presence of the carveouts does not resolve any ambiguity.
¶ 113       Pulling together all of their arguments, defendants additionally argue that nothing in the
        releases limits them to outdoor claims. However, at oral argument, Motorola made clear in
        no uncertain terms that the indoor/outdoor distinction is not at issue; instead, the issue is
        whether there was an environmental release. We agree with Motorola that the issue is not
        whether the claim was an indoor claim or an outdoor claim, but the issue instead is how
        broadly the term “environmental” is construed. That term controls the scope of the release
        and it is that term that is ambiguous.
¶ 114       Defendants also make several arguments concerning the specific reasoning of the trial
        court. However, “[d]e novo review is completely independent of the trial court’s decision,”
        and a reviewing court does not need to defer to the trial court’s judgment or reasoning.
        Platinum Partners Value Arbitrage Fund, Ltd. Partnership v. Chicago Board Options
        Exchange, 2012 IL App (1st) 112903, ¶ 12. As demonstrated above, we have engaged in our
        own analysis of the releases’ language and have come to the same conclusion as the trial
        court. Accordingly, we have no need to discuss the particular reasoning employed by the trial
        court.
¶ 115       In interpreting a contract, “a court initially looks to the language of a contract alone.” Air
        Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999). “If the language of the
        contract is facially unambiguous, then the contract is interpreted by the trial court as a matter
        of law without the use of parol evidence.” Air Safety, 185 Ill. 2d at 462. “If, however, the trial
        court finds that the language of the contract is susceptible to more than one meaning, then an
        ambiguity is present.” Air Safety, 185 Ill. 2d at 462. In the case at bar, examining the
        language of the releases alone, the trial court determined that the definition of
        “environmental/toxic tort claim” was susceptible to more than one meaning and that the
        releases were ambiguous. After conducting a de novo review of the releases, we agree with
        the trial court that the releases were ambiguous and that the trial court properly denied
        defendants’ motions for summary judgment and set the issue for trial.

¶ 116                                             II. Trial
¶ 117       Defendants next argue that the trial court’s finding that the release did not encompass the
        clean room claims was against the manifest weight of the evidence. Where ambiguity in a

                                                     - 25 -
        contract exists, “the trial court’s determination of the intent of the parties must not be
        disturbed on review unless it is contrary to the manifest weight of the evidence.” Bradley
        Real Estate Trust v. Dolan Associates Ltd., 266 Ill. App. 3d 709, 712 (1994). “A factual
        finding is against the manifest weight of the evidence if the opposite conclusion is plainly
        evident, or where the decision is unreasonable, arbitrary or without a basis in the evidence.”
        Asset Recovery Contracting, LLC v. Walsh Construction Co. of Illinois, 2012 IL App (1st)
        101226, ¶ 74.
¶ 118        “As the trier of fact, the trial judge was in a superior position to judge the credibility of
        the witnesses and determine the weight to be given to their testimony.” Chicago’s Pizza, Inc.
        v. Chicago’s Pizza Franchise Ltd. USA, 384 Ill. App. 3d 849, 859 (2008). In reviewing the
        trial court’s findings, “ ‘[i]t is not enough to show that there is sufficient evidence to support
        a contrary judgment.’ ” Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc., 114 Ill. 2d 133,
        142 (1986) (quoting People ex rel. Lauth v. Wilmington Coal Co., 402 Ill. 161, 167 (1949)).
        Instead, “[w]hen contradictory testimony that could support conflicting conclusions is given
        at a bench trial, an appellate court will not disturb the trial court’s factual findings based on
        that testimony unless a contrary finding is clearly apparent.” Chicago’s Pizza, 384 Ill. App.
        3d at 859. “Even where [a party’s] testimony in a bench trial was uncontradicted, the trial
        court was not required to give credence to or accept that testimony as establishing any fact in
        issue.” Gonet v. Chicago & North Western Transportation Co., 195 Ill. App. 3d 766, 776
        (1990). “It is the trial court’s prerogative to draw reasonable inferences and ultimate
        conclusions from the evidence [citation], and its judgment will not be disturbed because
        another trier of fact could have found differently or found reasonable other conclusions.”
        Gonet, 195 Ill. App. 3d at 776. “The court will not upset determinations of facts, credibility
        of witnesses or weight to be given testimony unless those determinations are manifestly
        against the weight of the evidence.” Gonet, 195 Ill. App. 3d at 776.
¶ 119        In the case at bar, although the releases they executed were substantively identical,
        Motorola engaged in very different negotiations with Associated and Zurich. Accordingly,
        we discuss each defendant separately for purposes of considering whether the trial court’s
        factual findings concerning the parties’ intent were against the manifest weight of the
        evidence.

¶ 120                                            A. Associated
¶ 121       Associated claims that the trial court’s findings were against the manifest weight of the
        evidence (1) because the trial court based its decision on a factual finding that was not
        supported by the evidence and (2) because the trial court applied an inappropriate legal
        analysis and failed to resolve the issue before it.
¶ 122       Associated first claims that “the Trial Court premised its five paragraph decision entirely
        on a finding that both parties knew about the possibility for clean room claims against
        Motorola and, for reasons about which the Trial Court speculated, chose not to discuss
        them.” We do not find this argument persuasive. The trial court’s written opinion indicates
        that it found that “[a]ll parties, Plaintiff and Defendants, were aware that IBM had been the
        subject of clean room claims starting in the [sic] mid-1990.” This fact is uncontroverted;
        Billeter, Associated’s witness, testified that Shirley Shean, who participated in the
        Associated-Motorola negotiations, handled clean room cases for IBM at the time of the
        execution of the release. From this fact, the trial court arguably inferred that the parties

                                                    - 26 -
        would have been aware of the possibility that such claims would also affect Motorola. “It is
        the trial court’s prerogative to draw reasonable inferences” (Gonet, 195 Ill. App. 3d at 776),
        and we cannot find that the trial court’s inference here, if one was made at all, was
        unreasonable. IBM was a competitor of Motorola engaged in the same type of business, and
        it was reasonable for the trial court to infer that Associated would have been aware of the
        possibility that Motorola would face the same kinds of liability claims as IBM had. We
        cannot find that this would render the trial court’s decision against the manifest weight of the
        evidence.
¶ 123        Associated also argues that the trial court applied the wrong legal analysis because it
        focused on whether the clean room cases were within the parties’ contemplation instead of
        determining whether the definition of “environmental/toxic tort claim” encompassed the
        interior of Motorola’s workplace. Associated argues that “a particular claim need not have
        been specifically contemplated or discussed by the parties to be encompassed by the release;
        rather[,] it need only fall within one of the categories that were contemplated by the parties.”
        We do not find this argument persuasive.
¶ 124        In support of its argument, Associated relies on our decision in Goodman v. Hanson, 408
        Ill. App. 3d 285 (2011). In that case, we considered the issue of “whether unknown claims
        that fall within the specific terms of a general release are barred by the release.” Goodman,
        408 Ill. App. 3d at 294. The release in that case barred “ ‘any and all claims and matters that
        have been asserted in the Litigation or that could have been asserted in the Litigation, and
        any and all claims arising out of or in any way related to the obligations, duties and
        management or administration of the Estate and/or Trust.’ ” Goodman, 408 Ill. App. 3d at
        289. The question presented to us was whether a malpractice claim based on the defendant’s
        failure to take certain deductions in a federal estate tax return was barred by the release.
        Goodman, 408 Ill. App. 3d at 288-89. After conducting an analysis of the relevant case law,
        we concluded that the claim was barred by the release, noting that “although the parties may
        not have contemplated claims specifically based on the Federal return, the terms of the
        release indicate that they contemplated (1) there were matters that were not asserted in the
        first lawsuit that could have been and (2) claims related to the ‘obligations, duties and
        management or administration of the Estate and/or Trust.’ Both of these categories include
        the claims based on the Federal return, and accordingly, those claims are barred.” Goodman,
        408 Ill. App. 3d at 297.
¶ 125        Goodman is inapposite to the instant case. As noted, in that case, there was no question
        that the claims asserted fell within the terms of the release. The only question was whether
        the fact that they were unknown at the time of the release’s execution had any effect on the
        applicability of the release. Here, by contrast, the question that the trial court had to resolve
        was whether the clean room cases fell within the definition of “environmental/toxic tort
        claims.” The trial court concluded that they did not, based on the parties’ negotiation history.
¶ 126        While it would have been equally proper for the trial court to have stated the question
        more broadly, we can find no error in its choosing to limit its holding to answering the
        narrow question presented by the facts before it: whether the clean room cases in particular
        were covered by the release. The trial court expressly stated that it “weighed and considered
        the testimony of the witnesses, judged their credibility by taking into account their manner
        and demeanor while testifying and, further, considered the reasonableness of their testimony
        in light of all the admissible evidence together with the exhibits offered and admitted into

                                                   - 27 -
        evidence.” It also referenced the parties’ negotiation history in its analysis, specifically
        noting that Associated was seeking a full policy buyout while Motorola was unwilling to
        release cell phone, asbestos, or product liability claims because it could not quantify its
        exposure. We cannot find that the trial court’s conclusion that the clean room cases were not
        encompassed by the release to be “unreasonable, arbitrary or without a basis in the evidence”
        (Asset Recovery Contracting, LLC, 2012 IL App (1st) 101226, ¶ 74), and, accordingly, affirm
        the trial court’s judgment in favor of Motorola.

¶ 127                                              B. Zurich
¶ 128        In addition to some of the same arguments raised by Associated, which we will not repeat
        here, Zurich argues that the trial court’s finding was against the manifest weight of the
        evidence because (1) the trial court ignored evidence that the Valley litigation resolved
        claims involving indoor exposures, (2) the trial court ignored evidence of Motorola’s and
        Zurich’s course of dealings on the intended meaning of the term “environmental,” and (3) the
        trial court disregarded evidence that Motorola itself treated clean room claims as
        environmental claims.
¶ 129        As an initial matter, as noted, Zurich’s arguments are based on the trial court “ignor[ing]”
        or “disregard[ing]” certain evidence. However, all of the evidence that Zurich points to was
        presented during the bench trial, and the court’s opinion expressly stated that it “weighed and
        considered the testimony of the witnesses, judged their credibility by taking into account
        their manner and demeanor while testifying and, further, considered the reasonableness of
        their testimony in light of all the admissible evidence together with the exhibits offered and
        admitted into evidence.” The fact that the trial court did not expressly mention the pieces of
        evidence Zurich cites does not mean that the trial court did not consider it.
¶ 130        Zurich first argues that the trial court’s order “fails even to acknowledge the evidence
        admitted at trial that the Valley Litigation involved both indoor and outdoor environment
        exposures.” However, as noted, the relevant question was not whether the release
        encompassed both indoor and outdoor claims since, as Zurich notes, it is undisputed that
        several of the Valley cases involved claims of drinking contaminated groundwater inside the
        plaintiffs’ homes. Instead, the question was whether Motorola’s clean rooms constituted
        “environments” under the release. Thus, Zurich’s argument offers no support to its claim that
        the trial court’s decision was against the manifest weight of the evidence.
¶ 131        Next, Zurich argues that the trial court ignored the unimpeached evidence at trial that
        Motorola knew that Zurich treated the Valley litigation, cell phone suits, and asbestos suits as
        environmental claims under the purview of its environmental claims unit. However, as
        Motorola notes, the trial court was entitled to give Zurich’s internal organizational
        nomenclature little weight in the context of interpreting the Zurich release, and we will not
        reweigh the evidence. Moreover, “[e]ven where [a party’s] testimony in a bench trial [is]
        uncontradicted, the trial court [is] not required to give credence to or accept that testimony as
        establishing any fact in issue.” Gonet, 195 Ill. App. 3d at 776. We cannot find that the trial
        court’s failure to mention this fact renders its decision against the manifest weight of the
        evidence.
¶ 132        We also note that this was not the only evidence of the course of dealings between
        Motorola and Zurich. Instead, there was also evidence of the parties’ negotiations leading to
        the execution of the release. Pearson, who represented Zurich, testified that for the second

                                                   - 28 -
        mediation session in November 2003, Zurich requested a release concerning the Valley sites
        and 56 related sites. Motorola suggested a release also concerning the Valley sites and 56
        related sites, but with an exception for asbestos and cell phone claims. Motorola also
        provided Zurich a copy of the Associated release, which Pearson considered to be “much
        broader” in scope; however, Pearson did not discuss his interpretation with anyone at
        Motorola. Instead, in a letter attached to the Associated release, Foradas, on behalf of
        Motorola, stated that “under the deal we have with [Associated], they paid Motorola 6
        million for a comparable environmental release to the one that Mr. Pearson and I had just
        said we’d be interested in doing.” Thus, Zurich was informed that Motorola considered the
        Associated release to be a “comparable environmental release” to the scope of release that
        Pearson and Foradas had been discussing. The scope of the release was not discussed further
        between the parties, with the only negotiation being over the dollar amounts at issue.
¶ 133       Finally, Zurich argues that the trial court ignored evidence that Motorola itself considered
        clean room claims to be environmental claims. However, again, the trial court was permitted
        to give little weight to Motorola’s use of the term in various contexts in light of the language
        of the release and the negotiating history between the parties. Furthermore, there is no
        indication that Zurich was aware of Motorola’s use of the term. As Zurich itself points out,
        “[o]nly the overt acts of the parties and the communications between them may be
        considered in determining whether and upon what terms they have entered into a contract.”
        American College of Surgeons v. Lumbermens Mutual Casualty Co., 142 Ill. App. 3d 680, 693
        (1986). See also Carey v. Richards Building Supply Co., 367 Ill. App. 3d 724, 727 (2006)
        (“undisclosed intentions are not relevant”). Accordingly, we cannot find that the trial court’s
        finding that the clean room cases were not encompassed by the Zurich release to be against
        the manifest weight of the evidence and affirm the judgment of the trial court.

¶ 134                                     III. Motion to Compel
¶ 135        Finally, defendants argue that the trial court erred in denying their motion to compel
        discovery of the CRSP Notebook. As part of discovery, defendants filed a motion to compel
        the production of a document entitled the “CRSP Reference Notebook (Environmental),”
        which they claimed would be relevant to show that Motorola considered clean room claims
        to be “environmental.” The document was allegedly a compilation of memoranda drafted by
        a number of environmental and toxic tort attorneys working under Motorola’s environmental,
        health, and safety group beginning in 1996, concerning a defense strategy for anticipated
        litigation over environmental chemical exposure in Motorola’s clean rooms after IBM, a
        competitor of Motorola, had been sued for injuries and birth defects to children of employees
        and contractors who worked in IBM’s clean room facilities. Motorola refused to produce the
        documents, arguing that the attorney-client privilege and work product doctrine applied. On
        November 28, 2012, the trial court ordered Motorola to produce the notebook to the court for
        in camera review, after which the court would “rule on whether the CRSP Notebook is
        relevant.”
¶ 136        On December 10, 2012, at the beginning of trial, the trial court ruled on defendants’
        motion to compel production of the CRSP notebook. The court stated:
                     “On the first topic with respect to the motion to compel, I reviewed the
                 compilation of documents that are referred to as the CRSP notebook which is the
                 Clean Room Safety Program notebook.

                                                   - 29 -
                    The defendants moved to have the notebook[,] I’ll refer to it as[,] produced in
                discovery. The plaintiff objected on the grounds of attorney-client privilege and work
                product, attorney work product privilege.
                    The Court is going–and I did review the manual. I find it to be privileged
                information both as far as attorney-client matters and as to–and also that it is perhaps
                also work product information.
                    Additionally, I’m ruling that it’s not relevant to the issue before the Court today
                which is why we are here, and that is to determine what the phrase ‘environmental
                toxic tort’ means as used in the two releases in question in this declaratory action
                proceeding.
                    I don’t think work product or attorney-client information that was generated at
                least several years prior to the execution of this release is relevant to the Court’s
                inquiry as to what the parties intended, what the parties meant and what they agreed
                to with respect to the term ‘environmental toxic tort’ in the context of the
                circumstances surrounding the execution of the questioned releases. So with that,
                that’s the ruling on the motion to compel.
                    Now, that is not to say that a different ruling might–and I emphasize ‘might’–be
                appropriate if this were an underlying declaratory judgment action on the issue of
                whether there was either a duty to defend or a duty to indemnify.
                    I know ultimately, that’s the bone of contention between the parties, but at this
                juncture, the issue is what did the release that was executed in 2003 mean, what did
                the parties want it to mean and what did they bargain for and what did they get when
                they wrote it down and signed it.”
¶ 137       On appeal, defendants argue that the trial court’s denial of their motion to compel was
        legally erroneous and prejudicial. Defendants argue that (1) the trial court did not apply the
        correct standard for relevance and (2) the notebook fell within the proper scope of discovery.
        Defendants also argue that the trial court erred in finding the documents shielded by the
        attorney-client privilege and the work product doctrine. We do not find these arguments
        persuasive.
¶ 138       Defendants first argue that the trial court erred by applying the standard for relevance for
        admissible evidence, as opposed to the standard for relevance for discovery. Illinois Supreme
        Court Rule 201(b)(1) (eff. July 1, 2002) authorizes broad discovery “regarding any matter
        relevant to the subject matter involved in the pending action.” “Traditionally, the trial court is
        accorded great latitude in determining the scope of discovery, as discovery presupposes a
        range of relevance and materiality which includes not only what is admissible at trial, but
        also that which leads to what is admissible at trial.” D.C. v. S.A., 178 Ill. 2d 551, 561 (1997).
        A trial court’s rulings on discovery matters “will not be disturbed on appeal absent a manifest
        abuse of discretion.” Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002). A court abuses
        its discretion “when its ruling ‘is arbitrary, fanciful, unreasonable, or where no reasonable
        person would take the view adopted by the trial court.’ ” Taylor v. County of Cook, 2011 IL
        App (1st) 093085, ¶ 23 (quoting People v. Caffey, 205 Ill. 2d 52, 89 (2001)). This standard of
        review is “highly deferential” to the trial court. Taylor, 2011 IL App (1st) 093085, ¶ 23.
¶ 139       In the case at bar, there is no evidence that the trial court failed to apply the standard for
        relevance in discovery matters. The court made it clear that the CRSP Notebook was sought


                                                    - 30 -
        to be produced in discovery, and the court found it not to be relevant after an in camera
        review. We will not presume that the trial court applied the wrong standard in the absence of
        any evidence that it did so.
¶ 140       Furthermore, we cannot find that the trial court abused its discretion in denying
        defendants’ motion to compel. Defendants argue that the notebook demonstrated that
        Motorola’s own environmental, health, and safety group considered clean room claims to be
        environmental claims. Zurich additionally argues that “[w]hat Motorola knew about the clean
        room risk at the time of settlement, how it treated that risk as environmental, and why it did
        not carve out those claims is essential evidence and, thus, is relevant.” However, with respect
        to Zurich’s point, there is no indication that any of these documents would have shed light on
        Motorola’s knowledge at the time of settlement, as they were compiled prior to the
        settlement negotiations; the trial court also found that Motorola knew of the possibility of
        clean room claims, so the notebook would not add anything to that aspect. Additionally, as
        noted, Motorola’s internal characterization of clean room claims several years before
        entering into settlement negotiations with either defendant is not relevant to the issue of
        whether those claims were released because there is no indication that this characterization
        was ever shared with defendants. “[T]he pertinent inquiry [in interpreting a contract] focuses
        upon the objective manifestations of the parties, including the language they used in the
        contract.” Carey, 367 Ill. App. 3d at 727. Thus, “undisclosed intentions are not relevant.”
        Carey, 367 Ill. App. 3d at 727. The relevant information for interpreting the scope of the
        releases was the negotiations between the parties and the information shared between them.
        We cannot find the trial court abused its discretion by denying defendants’ motion to compel.
¶ 141       Moreover, we note that the trial court had the opportunity to review the notebook
        in camera prior to its ruling on the motion to compel. Thus, the court had the opportunity to
        examine whether the documents contained in the notebook were relevant or would lead to
        relevant information. Armed with this additional knowledge of the contents of the documents
        defendants sought to discover, we cannot find that the trial court’s determination that these
        documents were not relevant was an abuse of discretion.
¶ 142       Since we have determined that the trial court did not abuse its discretion in denying
        defendants’ motion to compel on the basis of relevance, we have no need to consider whether
        the documents were also shielded from discovery by the attorney-client privilege and the
        work product doctrine.

¶ 143                                          CONCLUSION
¶ 144        For the reasons set forth above, we find that: (1) the trial court did not err in denying
        defendants’ motions for summary judgment and finding the releases to be ambiguous; (2) the
        trial court’s finding that the releases did not encompass clean room claims was not against
        the manifest weight of the evidence; and (3) the trial court did not abuse its discretion in
        denying defendants’ motion to compel the production of the CRSP Notebook.

¶ 145      Affirmed.




                                                  - 31 -
