                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




        Illinois School District Agency v. St. Charles Community Unit School District 303,
                                     2012 IL App (1st) 100088




Appellate Court            ILLINOIS SCHOOL DISTRICT AGENCY, Plaintiff-Appellant and
Caption                    Cross-Appellee, v. THE ST. CHARLES COMMUNITY UNIT SCHOOL
                           DISTRICT 303, a Unit of Local Government, Defendant-Appellee and
                           Cross-Appellant.



District & No.             First District, Sixth Division
                           Docket Nos. 1-10-0088, 1-10-2005 cons.


Filed                      March 30, 2012


Held                       In an action arising from a dispute over defendant school district’s
(Note: This syllabus       insurance coverage for mold claims, the appellate court rejected the
constitutes no part of     district’s argument for the extension of the targeted tender rule beyond
the opinion of the court   cases involving concurrent insurance policies where the policies at issue
but has been prepared      were all consecutive and, therefore, the appellate court reversed the trial
by the Reporter of         court’s ruling that the selective tender rule applied to compel plaintiff, an
Decisions for the          agency established by several school districts to pool their risks by
convenience of the         offering insurance coverage for purchase by members, to defend the mold
reader.)
                           claims alone, without equitable contribution; however, the appellate court
                           rejected the district’s argument that invoices from a mold expert retained
                           separately by the district and the agency were for litigation purposes and
                           were subject to reimbursement under the policy and upheld the finding
                           that the invoices were the district’s responsibility.
Decision Under             Appeal from the Circuit Court of Cook County, No. 03-CH-2413; the
Review                     Hon. Nancy J. Arnold, Judge, presiding.



Judgment                   Reversed in part and affirmed in part; cause remanded.


Counsel on                 Daniel J. Zollner, of Dykema Gossett PLLC, and J. Timothy Eaton,
Appeal                     Patricia S. Spratt, and Michael P. Sheehan, all of Shefsky & Froelich
                           Ltd., both of Chicago, for appellant.

                           Scott O. Reed, of Donnelly, Lipinski & Harris, LLC, and Michael J.
                           Duggan, of Klein, Thorpe & Jenkins, Ltd., both of Chicago, for appellee.


Panel                      PRESIDING JUSTICE GARCIA delivered the judgment of the court,
                           with opinion.
                           Justices McBride and R. Gordon concurred in the judgment and opinion.



                                             OPINION

¶1           Plaintiff Illinois School District Agency (ISDA), a provider of commercial general
        liability insurance, appeals the circuit court’s ruling that defendant St. Charles Community
        Unit School District 303 (District) properly targeted the ISDA to defend the District in a
        series of lawsuits stemming from mold infestation in the District’s high school building, over
        other insurers that issued policies covering the District prior to the policy issued by the
        ISDA. Illinois is one of only three states that allow an insured to selectively tender the
        defense of a lawsuit to one insurer over other chronologically concurrent insurers. The
        Illinois Supreme Court has never approved extending this uncommon right to include
        chronologically consecutive insurance policies. The policy grounds underlying the selective
        tender rule do not apply to past insurers where the risk of increased premiums or the risk of
        policy cancellation does not exist. We reverse the circuit court’s grant of summary judgment
        in favor of the District on counts II, III and IV of the ISDA’s amended complaint; we remand
        for further proceedings consistent with this opinion. We reject the District’s cross-appeal
        challenging the circuit court’s judgment in favor of the ISDA on the District’s counterclaim
        that it was entitled to reimbursement for certain invoices from the same mold expert
        separately retained by the ISDA and the District.




                                                 -2-
¶2                                       BACKGROUND
¶3       The District is a public entity that oversees St. Charles East High School, which suffered
     a mold infestation that gave rise to this case. The ISDA was established by certain school
     districts of Illinois to pool their risk. It offers for purchase by its members insurance
     coverage, much like ordinary commercial insurance carriers. The ISDA provided commercial
     general liability (CGL) insurance coverage to the District from July 1, 1995, through July 11,
     2001. Its policy provided that the ISDA “will have the right and duty to defend any ‘suits’
     seeking *** damages.” It also provided that the ISDA “will pay, with respect to any claim
     or ‘suit’ we defend: *** All reasonable expenses incurred by the [District] at our request to
     assist us in the investigation or defense of the claim or ‘suit.’ ”
¶4       Prior to coverage by the ISDA, the District held CGL policies with General Casualty
     Company of Wisconsin (General Casualty) from September 1, 1971, to September 1, 1974,
     Employers Fire Insurance Company from October 1, 1974, to October 1, 1977, Hartford
     Accident and Indemnity Company (Hartford) from October 1, 1977, to July 1, 1985, and
     Indiana Insurance Company (Indiana) from October 1, 1985, to July 1, 1995.

¶5                                     The Mold Lawsuits
¶6        In March 1999, the District notified the ISDA that it faced potential tort liability
     stemming from mold exposure to St. Charles East High School students. The ISDA reserved
     its rights and retained attorney Robert Smyth of the law firm of Donohue, Brown,
     Mathewson & Smyth to investigate and monitor mold-based claims.
¶7        Between March 2001 and March 2002, three separate lawsuits were filed against the
     District alleging the District’s negligence caused the former students to suffer mold-related
     injuries. In April 2001, the District tendered the defense of the suits to the ISDA and Indiana.
     On June 26, 2001, the ISDA accepted the defense of the suits against the District, subject to
     a reservation of rights; the ISDA retained attorney Smyth to represent and defend the District
     in the lawsuits. On August 21, 2001, the District tendered the defense of the lawsuits to
     Hartford and General Casualty as well. On September 7, 2001, Hartford acknowledged
     receipt of the tender. On September 24, 2001, Indiana agreed to defend the District pursuant
     to a reservation of rights. On October 1, 2001, General Casualty acknowledged receipt of the
     tender, reserved its rights, and declined to defend. On February 15, 2002, Hartford agreed to
     defend against the lawsuits under a reservation of rights.
¶8        In a letter dated March 19, 2002, the District’s coverage counsel, Scott Reed, informed
     the ISDA that the District “has now obtained defense of the [action] under a reservation of
     rights from all primary general liability insurers with coverage in force on an occurrence
     basis from October 1, 1981 through July 11, 2001.”
¶9        As a result of the mold problem, the District employed several contractors and experts
     to investigate and remedy the mold infestation. On July 23, 2002, Reed provided the ISDA,
     Indiana, and Hartford with copies of the “expert and consultant bills to date” generated by
     these services, which totaled approximately $2.2 million.



                                               -3-
¶ 10                        Hartford, Indiana, and General Casualty Settle
¶ 11        On August 14, 2002, Hartford sued the District in federal court, asserting it was not
       obligated to reimburse the District for the expert and consultant bills the District had
       incurred. On or about October 16, 2002, Hartford and the District reached a settlement
       whereby Hartford paid the District $150,000 in exchange for the District’s “de-activation”
       of its tender of defense, which rendered moot its claim for indemnity. The agreement was
       fully executed on November 20, 2002. It provided that Hartford’s payment satisfied its
       obligations to the District, including
            “any costs and expenses incurred by The School District in defense or indemnity of the
            Underlying Lawsuits, or any other costs associated with the mold remediation which
            were incurred on or before October 14, 2002. These costs and expenses include, but are
            not limited to, AAA Environmental, Golan Harris, Holian Asbestos Removal, Carnow
            Conibear, Judge & James, Raths Raths & Johnson, Shirmer Engineering, STS
            Consultants, Air Quality Services, HP Woods, and Donohue Brown Mathewson &
            Smyth [hereinafter, the vendors].”
       In a letter dated November 22, 2002, the District informed the ISDA’s in-house claims
       handler and its outside counsel that the District and Hartford had reached a settlement
       agreement, “the terms of which are confidential.” Pursuant to the settlement, the District
       withdrew its tender to Hartford effective October 14, 2002.
¶ 12        On December 9, 2002, the District settled with Indiana. It deactivated its tender in
       exchange for a $500,000 payment. The settlement included language substantially similar
       to that of the Hartford settlement in that Indiana’s payment satisfied obligations as to both
       litigation defense and reimbursement of mold remediation expenses provided by the same
       vendors listed in the Hartford settlement. The District also informed the ISDA’s claims
       handler and outside counsel of this agreement, the terms of which were declared confidential.
       A similar settlement was reached between the District and General Casualty for $10,000.
¶ 13        The District’s reimbursement claims arose from its payment of certain vendors from its
       own funds. When it later received the settlement proceeds, it deposited the proceeds into the
       District’s “Educational Fund,” which it used to pay general operating expenses.

¶ 14                                       The Lawsuits
¶ 15       The District remained in settlement discussions with the ISDA and apparently believed
       the discussions would continue. The ISDA, however, filed the instant action against the
       District on February 6, 2003. Count I of the lawsuit sought a declaration that the ISDA had
       no obligation to cover mold remediation expenses unrelated to the defense of the mold
       lawsuit; count II alleged the District’s “secret” settlements with the other three insurers
       breached its insurance contract with the ISDA. On September 30, 2005, the District filed an
       answer and a four-count counterclaim. Count I of the counterclaim sought a declaration that
       the ISDA was obliged to cover mold remediation costs in addition to litigation defense
       expenses; count II alleged the ISDA had breached its contract with the District by failing to
       compensate the District for remediation and litigation defense costs; count III sought to
       recover costs and attorney fees the District incurred in pursuing insurance coverage from the

                                                -4-
       other insurers; and count IV sought penalties against the ISDA pursuant to section 155 of the
       Insurance Code (215 ILCS 5/155 (West 2004)) for the ISDA’s “vexatious and unreasonable
       delay” in providing the insurance coverage to which the District was entitled.
¶ 16        The ISDA moved to dismiss all four counts of the counterclaim. On May 4, 2006, the
       circuit court denied the motion as to counts I through III, but granted it as to count IV. On
       June 21, 2010, the court entered judgment for the ISDA on count III of the counterclaim. The
       District does not challenge these rulings on cross-appeal.
¶ 17        On January 27, 2006, the District moved for partial summary judgment on count I of its
       counterclaim that sought reimbursement under the ISDA policy for mold remediation
       expenses that it claimed also aided the litigation, and on count II of the ISDA’s lawsuit that
       claimed the settlements with the three other insurers and deactivations of tender breached the
       ISDA’s insurance contract. Following oral argument, Judge Nancy Arnold denied the
       District’s summary judgment motion as to count I of the counterclaim. As to the District’s
       summary judgment motion regarding count II of the ISDA’s complaint, the ISDA argued that
       the District’s deactivations of tender to Hartford, Indiana, and General Casualty were
       improper because the District was compensated for the deactivations. Judge Arnold ruled no
       legal distinction existed between compensated and uncompensated deactivation of tender:
       “I don’t see any real dispute in your response, frankly. *** There is a little argument made
       with no support saying there is a distinction here. But there’s no case law telling me the
       distinction has any legal basis.”
¶ 18        On June 14, 2006, the circuit court entered summary judgment for the District on count
       II of the ISDA’s complaint, holding the District had the right to deactivate tender of the
       litigation defense as to the other three insurers and that doing so in exchange for settlement
       payments did not breach its policy with the ISDA. With a favorable ruling on the same claim
       by the ISDA, the District voluntarily dismissed count II of its counterclaim, claiming a policy
       breach by the ISDA. The court, however, granted leave to the ISDA to file an amended
       complaint alleging the District received a “double recovery” from its settlement with the
       other insurers and the unspecified insurance proceeds it received from the ISDA.
¶ 19        The ISDA moved for reconsideration of the court’s ruling on the compensated
       deactivation of tender, which the court denied on August 14, 2006. On November 7, 2007,
       the ISDA again moved the court to reconsider, this time based on a relatively new case,
       Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 368 Ill. App.
       3d 665 (2006), aff’d, 227 Ill. 2d 102 (2007). At oral argument, Judge Arnold observed that
       Kajima stood only for the proposition that an insured cannot selectively tender defense of a
       lawsuit to an insurer based on an excess insurance policy when the insured still has available
       primary insurance policies. The circumstances in Kajima were not the circumstances in the
       instant case and thus did not warrant reconsideration of the ISDA’s claim.
¶ 20        On June 8, 2008, the ISDA filed an amended complaint, adding count III, which sought
       setoff or restitution of amounts paid in defending and settling the litigation, and count IV,
       which argued for proration or restitution from the District for the amount it allegedly paid
       in excess of its “allocable pro rata share” of defense costs in the lawsuits. The ISDA then
       filed a “Motion for Setoff of Insurance Settlement Proceeds,” arguing that the District


                                                -5-
       “breached its express duties, implied duty of good faith, and fiduciary duties under the ISDA
       Agreement”; that the District “received a double recovery of defense and indemnity costs,
       received a windfall profit and has been unjustly enriched”; and that the District’s settlement
       agreements with the other insurers “intentionally prejudiced [the] ISDA by releasing its right
       to equitable contribution.” The District responded that it had actually recovered less than
       one-third of its investigative costs and therefore received no windfall and breached no duty
       to the ISDA. On December 4, 2009, the circuit court denied the ISDA’s motion and entered
       judgment for the District on counts III and IV of the ISDA’s amended complaint. The record
       before us contains no findings of fact or conclusions of law as to the order of December 4,
       2009, which is unaccompanied by any transcript of the proceedings.
¶ 21       The ISDA remained the lone insurer that defended and indemnified the District in the
       lawsuits, which settled for $90,000 in September 2007. The ISDA alleges it paid “$550,889
       in defense fees and expenses related to the Mold Lawsuits, and $90,000 to settle the Mold
       Lawsuits,” for a total expenditure of $640,889.1
¶ 22       The ISDA timely appeals, following the circuit court’s order of June 21, 2010, which
       disposed of count III of the District’s counterclaim, the last issue in the case.

¶ 23                                      The Cross-Appeal
¶ 24        The District cross-appeals from the circuit court’s judgment in the ISDA’s favor on count
       I of the District’s counterclaim and count I of the ISDA’s amended complaint. Before the
       circuit court, the parties submitted cross-motions for partial summary judgment regarding
       “whether disputed invoice entries from Dr. James Woods are legitimate defense costs as to
       which [the ISDA] owes a duty to reimburse [the District], or whether these invoice entries
       represent services requested by [the District] for its efforts to remediate the mold condition
       in its physical plant.” The court’s previous orders of June 14, 2006, and April 24, 2008, had
       established that the ISDA had no duty to indemnify the District for remediation under the
       CGL policy. The court resolved the cross-motions for reimbursement on the disputed
       invoices in “a bench trial,” pursuant to a joint stipulation. On May 22, 2009, the court issued
       written “Findings of Fact and Entry of Judgment After Stipulated Trial.” In the course of the
       stipulated trial, the court considered the briefs, exhibits, oral arguments, and the depositions
       of expert Woods and attorney Smyth.
¶ 25        The court found Dr. Woods was “an expert originally retained by the ISDA defense
       counsel, Robert Smyth, but then separately retained by [the District] for its own purposes.”
       It noted that the ISDA had only paid a portion of expert Woods’ invoices, contending the
       unpaid invoices were allocable to mold remediation, not litigation defense. Under the
       language of the ISDA’s policy, the “ISDA was obligated to pay for expenses it actually
       incurred, and all reasonable expenses incurred by [the District] at ISDA’s request to assist
       in the investigation or defense of the mold litigation.” The court agreed with the case law


               1
                The ISDA also states at page 22 of its brief that “[t]he total spent by [the] ISDA to defend
       and settle the Mold Lawsuit was $715,674.” The discrepancy of $74,785 between the two totals is
       the amount for “allocated Loss (Claim Adjustment) Expenses.”

                                                   -6-
       cited by the District, Aerojet-General Corp. v. Transport Indemnity Co., 948 P.2d 909, 924
       (Cal. 1997), that “the burden of proving the existence, amount, reasonableness, and necessity
       of site investigation as defense costs rests with the insured.” However, the circuit court found
       Aerojet and the other cases cited by the District distinguishable because the remediation
       measures undertaken by the insureds in those cases were compelled by government
       environmental cleanup regulations, which triggered the duty of the insurers to indemnify for
       the remediation costs. The court noted: “The mold infestation at St. Charles High School did
       not need to be corrected to avoid potential liability in any of the lawsuits.”
¶ 26        The court then turned its attention to the disputed invoices from expert Woods. The
       question for the court was whether the disputed invoice entries represented reasonable
       expenses incurred for defense purposes at the ISDA’s request. The court “reject[ed] [the
       District’s] argument that where Woods’ work was useful for remediation and litigation, the
       court should arbitrarily order each party to bear half of the costs.” It found “relevant, but not
       conclusive, the fact that [the District] internally coded these expenditures as construction,
       capital improvement, or operation and maintenance costs.” The court found that Woods’
       work on the “Seven-Step Protocol,” a step-by-step plan for some of his work at the high
       school, “was done pursuant to [the District’s] request, was not requested by the defense
       counsel engaged by the ISDA, and was implemented for the purpose of remediation, not
       litigation.” Turning to specific invoices, the court found the invoices dated April 26, 2001,
       and May 16, 2001, were properly chargeable to litigation expenses, which the ISDA was
       obligated to pay. The ISDA does not appeal that finding.
¶ 27        The court next found the “overwhelming evidence” indicated the May 14-16 entry
       pertained to meetings and preparation requested by the District for purposes of mold
       remediation. The court observed, “The remaining invoices were all billed to [the District]”
       through its superintendent. It found “[the District] bears the burden of proving that the
       expenses listed are reasonable expenses incurred at the ISDA’s request to assist in the
       investigation or defense of the mold litigation.” With regard to each of the remaining
       invoices, dated June 14, August 6, October 1, and December 31, 2001, consistent with the
       deposition testimony of Woods that the work “was needed for remediation [but] could be
       used for forensic[s],” the court found the work predominately served to remedy the school’s
       mold infestation. Judge Arnold ruled the possible dual purpose of the work was “not
       sufficient to establish that the work represented *** was performed at the ISDA’s request to
       aid it in the mold litigation.” Accordingly, the court held the ISDA had no obligation to pay
       any of the remaining disputed invoices.
¶ 28        The District timely cross-appeals.

¶ 29                                        ANALYSIS
¶ 30       The ISDA contends the District violated the terms of its insurance policy by entering into
       “secret” settlements with the other insurers and tendering the defense of the mold litigation
       to the ISDA alone. It argues these actions constituted a breach of the District’s purported
       fiduciary duty to the ISDA and that the District received a “windfall” in the amount of the
       insurance proceeds it received that exceeded the amount of its litigation costs. The ISDA


                                                 -7-
       seeks a setoff or restitution of that amount. The District counters that an insured party has a
       paramount right to tender defense of a lawsuit to any primary insurer it chooses, that an
       insured owes no fiduciary duty to an insurer, and that the mold infestation cost the District
       far more than the sum of the settlements it received. In its cross-appeal, the District urges that
       the ISDA is liable for a greater portion of the Woods invoices than the circuit court allowed.
       The ISDA responds that the court ruled based on the evidence before it when it found the
       ISDA not liable for the invoices in question.
¶ 31       We note that the District’s responsive brief contains 34 single-spaced footnotes, many
       of which advance substantive arguments, in the span of 64 pages. “Footnotes are
       discouraged, but if used must be double-spaced.” Ill. S. Ct. R. 341(a) (eff. July 1, 2008).
       “Substantive arguments may not be made in footnotes.” Technology Solutions Co. v.
       Northrop Grumman Corp., 356 Ill. App. 3d 380, 382 (2005) (sua sponte striking all
       footnotes from the parties’ briefs where their briefs contained slightly more footnotes per
       page than the District’s). While we grant the District greater lenience than did the court in
       Technology Solutions, we caution counsel for the District that supreme court rules are not
       mere suggestions.

¶ 32                            The ISDA’s Appeal–Selective Tender
¶ 33        We agree with the parties that our review of the circuit court’s summary judgement order
       finding the District in compliance with the ISDA insurance contract is subject to de
       novo review. Kajima, 227 Ill. 2d at 106 (“This court conducts a de novo review of an order
       granting summary judgment.”); Avery v. State Farm Mutual Automobile Insurance Co., 216
       Ill. 2d 100, 129 (2005) (“the construction, interpretation, or legal effect of a contract is a
       matter to be determined by the court as a question of law”). “Summary judgment is
       appropriate where the pleadings, depositions, admissions and affidavits on file, viewed in the
       light most favorable to the nonmoving party, reveal that there is no genuine issue as to any
       material fact and that the moving party is entitled to judgment as a matter of law.” Kajima,
       227 Ill. 2d at 106 (citing 735 ILCS 5/2-1005(c) (West 2006)).
¶ 34        The ISDA notes the parties’ insurance agreement expressly provides the ISDA’s
       coverage is applicable only as excess over other applicable insurance. It argues the District
       breached the policy’s provision of “other insurance” when the District, through its
       settlements with Indiana, Hartford, and General Casualty, foreclosed the ISDA from seeking
       equitable contribution from these other insurance companies for the mold litigation. The
       District counters that it had the unfettered right to tender the defense of the lawsuits to any
       of its insurers.
¶ 35        “[T]he doctrine of equitable contribution allows [an insurer] to be reimbursed by other
       insurers that are also liable for [a] loss.” American States Insurance Co. v. CFM
       Construction Co., 398 Ill. App. 3d 994, 998 (2010). It “ ‘arises from a right, which is
       independent from the rights of the insured, to recover from a co-obligor who shares the same
       liability as the party seeking contribution.’ ” Id. (quoting Argonaut Insurance Co. v. Safway
       Steel Products, Inc., 355 Ill. App. 3d 1, 10-11 (2004)). “The purpose of the doctrine is to
       provide a remedy when one insurer has paid a debt that is equally owed by another insurer.”


                                                  -8-
       CFM, 398 Ill. App. 3d at 998. “ ‘The fact that one insurer undertakes the burden of a full
       settlement payment does not mean the insurer is a volunteer.’ ” Id. (quoting Chicago
       Hospital Risk Pooling Program v. Illinois State Medical Inter-Insurance Exchange, 325 Ill.
       App. 3d 970, 981 (2001)). “Equitable ‘contribution applies to *** policies [that] insure the
       same entities, the same interests, and the same risks.’ ” CFM, 398 Ill. App. 3d at 998
       (quoting Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 316 (2004)).
¶ 36        The District does not argue that the ISDA failed to meet the criteria for equitable
       contribution; rather, it contends the ISDA is ineligible for equitable contribution arising from
       the doctrine’s exception known as the targeted tender or selective tender rule. “[T]he
       ‘targeted’ or ‘selective’ tender doctrine allows an insured covered by multiple insurance
       policies to select or target which insurer will defend and indemnify it with regard to a
       specific claim.” Kajima, 227 Ill. 2d at 107; John Burns Construction Co. v. Indiana
       Insurance Co., 189 Ill. 2d 570, 574 (2000); Cincinnati Cos. v. West American Insurance Co.,
       183 Ill. 2d 317, 323 (1998). “ ‘Where an insured makes such a designation, the duty to
       defend falls solely on the selected insurer. That insurer may not in turn seek equitable
       contribution from the other insurers who were not designated by the insured.’ ” Burns, 189
       Ill. 2d at 575 (quoting Cincinnati, 183 Ill. 2d at 324). “The insured may choose to forgo an
       insurer’s assistance for various reasons, such as the insured’s fear that premiums would be
       increased or the policy cancelled, in the future.” Cincinnati, 183 Ill. 2d at 326. The insured
       is also “ ‘permitted to deactivate coverage with a carrier previously selected for purposes of
       invoking exclusive coverage with another carrier.’ ” Kajima, 227 Ill. 2d at 110-11 (quoting
       Alcan United, Inc. v. West Bend Mutual Insurance Co., 303 Ill. App. 3d 72, 83 (1999)).
¶ 37        In 2001, Justice Quinn of the First District observed that Illinois’s status as one of a very
       small minority of states that employ the targeted tender doctrine is not one of distinction: “In
       the vast area of legal jurisprudence, there are undoubtedly many instances where being the
       first, or only, jurisdiction to grant rights to persons or entities may rightly be a source of
       pride. While it is still very early, the doctrine of ‘selective tender’ does not appear to me to
       be one of those instances.” Chicago Hospital Risk Pooling Program, 325 Ill. App. 3d at 987
       (Quinn, J., specially concurring). Ten years later, our research has identified Montana and
       Washington as the only other states recognizing the right of selective tender. See XL
       Specialty Insurance Co. v. Progressive Casualty Insurance Co., 411 F. App’x 78, 81 (9th
       Cir. 2011) (citing Casualty Indemnity Exchange Insurance Co. v. Liberty National Fire
       Insurance Co., 902 F. Supp. 1235, 1237, 1238 & n.3 (D. Mont. 1995), citing Institute of
       London Underwriters v. Hartford Fire Insurance Co., 234 Ill. App. 3d 70 (1992)); Mutual
       of Enumclaw Insurance Co. v. USF Insurance Co., 191 P.3d 866, 873 (Wash. 2008). As
       such, we tread with caution when the application of this right, which is uncommonly
       generous to insured parties, falls outside of the circumstances previously approved by our
       supreme court.
¶ 38        The ISDA contends the “other insurance” clause of its policy entitled it to equitable
       contribution from the District’s other insurers. The clause provides:
            “Coverage provided by this Plan shall apply only as excess over other insurance and/or
            coverage applicable to a loss hereunder regardless of whether such other coverage
            provides primary, excess, umbrella or contingent coverage. When both this coverage and

                                                  -9-
            other insurance apply to the loss on the same basis, whether excess or contingent, the
            Agency shall not be liable under this Plan for a greater proportion of the loss than that
            stated in the [contribution by equal shares provision].”
       “Other insurance” excess clauses such as this one are “an effort to override [an insured’s
       right] to choose among co-insurers.” River Village I, LLC v. Central Insurance Cos., 396 Ill.
       App. 3d 480, 487 (2009). Such provisions, as in this case, “attempt to render otherwise
       primary insurance as excess over any other collectible insurance, most often with statements
       in the policy that declare the insurer’s coverage to be excess over any other valid and
       collectible insurance available to the insured.” Id. “An ‘other insurance’ provision does not
       in itself overcome the right of an insured to tender defense of an action to one insurer alone.”
       Burns, 189 Ill. 2d at 578. Accordingly, the existence of the “other insurance” clause is not
       dispositive. Nor are we inclined to address in this case whether a legal distinction exists
       between compensated and uncompensated deactivation of tender, as the circuit court below
       rejected.
¶ 39        Rather, we deem the dispositive issue to be whether an insured’s right to selective tender
       among chronologically concurrent policies extends to consecutive ones such as the policies
       at issue in this case. There is no supreme court precedent for doing so. See Kajima, 227 Ill.
       2d at 117; John Burns Construction Co. v. Indiana Insurance Co., 189 Ill. 2d 570 (2000);
       Cincinnati, 183 Ill. 2d at 317. The most recent supreme court decision on the selective tender
       rule suggests that the insurance policies must be concurrent for the rule to apply: “[T]argeted
       tender can be applied to circumstances where concurrent primary insurance coverage exists.”
       (Emphasis added.) Kajima, 227 Ill. 2d at 117 (insured could not selectively tender lawsuit
       defense to one insurance carrier over another where the two policies were not concurrent
       primary policies); see also Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 200:37
       (3d ed. 2007) (citing Kajima for the proposition that “the selective tender rule is only
       applicable to concurrent insurance coverage and not consecutive primary or excess coverage
       policies where other primary coverage is available”). Accordingly, where coverage is not
       concurrent, but rather consecutive as it was in this case, we do not read the authority the
       District relies upon as foreclosing the ISDA’s claim for equitable contribution by invoking
       the targeted tender exception.
¶ 40        In River Village, this court declined to apply the targeted tender rule to a policy
       determined to provide “excess coverage,” consistent with the supreme court’s decision in
       Kajima. River Village, 396 Ill. App. 3d at 492. The River Village court noted: “The targeted
       tender doctrine allows an insured who is covered by multiple and concurrent insurance
       policies to select, or ‘target,’ which insurer he wants to defend and indemnify him regarding
       a specific claim.” (Emphasis added.) Id. at 486. River Village is not authority for the
       District’s claim in the instant case.
¶ 41        We are aware of only one Illinois case that appears to have applied the targeted tender
       rule to consecutive insurance policies, a case which the District acknowledged at oral
       argument is not factually on point for the issue before us. See Richard Marker Associates v.
       Pekin Insurance Co., 318 Ill. App. 3d 1137 (2001).
¶ 42        In that case, architect Marker was insured by Pekin Insurance Company from August 25,


                                                -10-
       1991, to August 25, 1992, and by Statewide Insurance Company beginning on August 25,
       1992. Id. at 1139. Marker was sued by a client and tendered defense of the suit to both
       insurance companies. Id. Marker then withdrew his tender to Statewide, leaving only Pekin
       to indemnify Marker after he settled with the former client. Id. In Pekin’s suit for equitable
       contribution from Statewide, the circuit court granted Pekin summary judgment. Id. at 1140.
       The appellate court reversed, holding that Pekin was not entitled to equitable contribution
       from Statewide precisely “because Marker had elected to forgo coverage under Statewide’s
       policy.” Id. at 1145. The Marker court acknowledged that “our courts have chosen to protect
       the insured’s right to choose or knowingly forego coverage.” Id. at 1144. An insured’s
       decision to forego coverage by one insurer in favor of another was explained by “the
       insured’s fear that premiums would be increased or the policy canceled in the future.” Id. at
       1141 (citing Cincinnati, 183 Ill. 2d at 326, and Alcan, 303 Ill. App. 3d at 79).
¶ 43        That explanation for the selective tender rule has no application in this case. The District
       selectively tendered the defense of its litigation to its current insurer, the ISDA. Thus, the
       District could not have acted out of “fear that premiums would be increased or the policy
       canceled, in the future” as was noted in Marker. Marker, 318 Ill. App. 3d at 1141. See
       Cincinnati, 183 Ill. 2d at 326 (“[The] insured may choose to forgo an insurer’s assistance for
       various reasons, such as the insured’s fear that premiums would be increased or the policy
       cancelled in the future.”); Enumclaw, 191 P.3d at 873 (“Like a driver involved in a minor
       accident, an insured may choose not to tender in order to avoid a premium increase. The
       insured may also want to preserve its policy limits for other claims, or simply to safeguard
       its relationship with its insurer.”). The District’s tender to the ISDA made future premium
       increases or cancellation of its policy more likely, rather than less.2 Of course, the District
       may well have decided that either risk was acceptable given the compensation it received
       from Indiana, Hartford, and General Casualty for deactivation of its tender of defense. Cf.
       CFM, 398 Ill. App. 3d at 998. Nor is it accurate to describe this case as one where the
       District exercised its right “[to] forgo coverage” from the other insurers as the Marker court
       noted for the outcome there. Marker, 318 Ill. App. 3d at 1144. While we have declined to
       address the issue of compensated versus uncompensated deactivation of tender, first noted
       and then dismissed by the circuit court, we observe that foregoing coverage from other
       insurers generally does not entail receiving $660,000 as the District received from Hartford,
       Indiana, and General Casualty for its deactivation of tender. Compensated deactivation of
       tender appears indistinguishable from a payment of “a debt *** equally owed by another
       insurer.” CFM, 398 Ill. App. 3d at 998. The District presents us with no good reason to
       conclude that the targeted tender doctrine, as established by our supreme court’s decisions,
       should extend to the circumstances present in this case.
¶ 44        The ISDA advances a handful of other arguments effectively seeking equitable
       contribution. It relies on the “transfer of rights” clause of its insurance agreement with the
       District; it argues the targeted tender doctrine does not apply to it because it is an


               2
               Indeed, the insurance policy between the District and the ISDA was terminated about three
       months after the District tendered to the ISDA.

                                                 -11-
       “intergovernmental cooperative”; and it contends the District violated a fiduciary duty and
       a duty of good faith owed to the ISDA. Further, it argues that the District “has been paid
       twice for its defense and indemnity costs in the Mold lawsuits–once by [the] ISDA and once
       by the settling insurers.” We decline to address those arguments as well.
¶ 45       Under the circumstances presented in this case, we narrowly draw our holding. In our
       review of the grant of summary judgment on counts II, III, and IV of the ISDA’s amended
       complaint, we conclude that the District was not entitled to judgment as a matter of law. No
       supreme court case approves the use of the selective tender rule to consecutive insurance
       policies. Nor do we provide such authority in this case. Accordingly, we conclude the circuit
       court erred in granting summary judgment to the District based on its purported right to
       selectively tender the defense of the mold lawsuits to the ISDA as a consecutive insurer.
       Given our remand, we decline to address the “double payment” arguments urged by the
       ISDA to support this outcome, though we note that the ISDA is correct that an insured party
       may not receive a double recovery for the same “harm or injury.” Federal Insurance Co. v.
       Binney & Smith, Inc., 393 Ill. App. 3d 277, 296 (2009) (remanding for further findings where
       “[f]ailure to account for *** settlement [with one insurer] ha[d] the potential of providing
       [the insured] with a windfall” in light of additional insurance payments from a second
       insurer). We remand to the circuit court for further proceedings consistent with this opinion.
¶ 46       Though our reversal of summary judgment in favor of the District renders unavailing the
       District’s request for attorney fees in its “Conclusion” of its brief, even if our decision were
       otherwise, we would reject the District’s request out-of-hand as “a claim of error that is
       merely listed but not ‘argued’ [does] not satisfy the requirements of Rule 341.” Vancura v.
       Katris, 238 Ill. 2d 352, 373 (2010) (citing Ill. S. Ct. R. 341 (eff. July 1, 2008)).

¶ 47                                  The District’s Cross-Appeal
¶ 48        The District asserts it is entitled to reimbursement from the ISDA for certain invoices
       from Dr. James Woods that it contends could benefit both remediation and litigation. The
       District contends the circuit court misconstrued the District’s burden as to the so-called “dual
       purpose” invoices. The District contends the circuit court enhanced the District’s burden of
       proof at trial when the court referenced policy language that the ISDA would be responsible
       only for defense costs “at ISDA’s request.”
¶ 49        We understand the ISDA to counter that the true issue on cross-appeal is whether the
       District met its burden before the circuit court to prove the “dual purpose” invoices were
       predominately litigation expenses rather than remediation expenses, which the bench trial,
       based on the stipulated facts, was meant to resolve.
¶ 50        The parties dispute the applicable standard of review on the cross-appeal issue. The ISDA
       accuses the District of failing to identify the applicable standard of review in violation of
       Illinois Supreme Court Rules 341(h)(3) and 341(i) (eff. July 1, 2008) (both parties “must
       include a concise statement of the applicable standard of review for each issue”). We note
       the ISDA’s position on the applicable standard is itself unclear as it identifies potentially
       different applicable standards but fails to state which standard should apply to the issue
       before us. The District argues that its fundamental claim that the circuit court improperly

                                                -12-
       enhanced its burden regarding the disputed invoices presents a question of law subject to de
       novo review.
¶ 51       We elect to apply a de novo standard of review to the District’s initial contention that its
       burden was unfairly enhanced by the circuit court’s interpretation of the CGL contract
       between the parties. See 1350 Lake Shore Associates v. Healey, 223 Ill. 2d 607, 614, 627
       (2006) (questions of law regarding the burden of proof are reviewed de novo). Should we
       find no fundamental error of law regarding the District’s burden, we review the circuit
       court’s findings supporting its judgment, following the bench trial, against the manifest
       weight of the evidence. System Development Services, Inc. v. Haarmann, 389 Ill. App. 3d
       561, 570 (2009) (“The standard of review in a bench trial is whether the judgment is against
       the manifest weight of the evidence.” (Internal quotation marks omitted.)).
¶ 52       The District concedes that it bore the general burden of establishing that the disputed
       invoices were subject to reimbursement under the CGL policy. Our supreme court “has long
       established that the burden is on the insured to prove that its claim falls within the coverage
       of an insurance policy.” Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453 (2009). The
       District quotes Aerojet for the indisputable proposition, under the context of this case, that
       “it is the insured that must carry the burden of proof on the existence, amount, and
       reasonableness and necessity of the site investigation expenses as defense costs, and it must
       do so by the preponderance of the evidence.” Aerojet, 948 P.2d at 924; see also Continental
       Casualty Co. v. Board of Education, 489 A.2d 536, 546 (Md. App. 1985) (“The insured has
       the burden of establishing that a given item of legal service or expense was reasonably
       related to the defense of [the suit against it.] The [insured] must prove its damages.”). The
       District acknowledges that expenses incurred only for remediation are its sole responsibility.
¶ 53       Paragraph 4 of the supplementary payments subsection in section I of the CGL policy
       expressly provides: “We will pay, with respect to any claim or ‘suit’ we defend: *** All
       reasonable expenses incurred by the Member [the District] at our request to assist us in the
       investigation or defense of the claim or ‘suit.’ ” (Emphasis added.) The circuit court duly
       noted this language. “When construing the language of an insurance policy, a court’s primary
       objective is to ascertain and give effect to the intentions of the parties as expressed by the
       words of the policy.” Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 371 (2007). “If
       the words used in the policy are clear and unambiguous, they must be given their plain,
       ordinary, and popular meaning.” Id.
¶ 54       The District argues that the circuit court improperly enhanced its burden when it required
       the District to demonstrate, pursuant to the policy language, that the defense costs were “at
       ISDA’s request.” The District asserts the circuit court “went too far in [the] ISDA’s favor.”
       However, the District does not contend this provision was invalid or inapplicable. Rather,
       the District suggests that requiring it to demonstrate Woods’ services were at the ISDA’s
       request effectively allows an insurer to simply “say *** that it is not going to pay for
       particular services.” According to the District, such an unrestrained reading of paragraph 4
       of the supplementary payments of the policy gives insufficient consideration to the ISDA’s
       “duty,” under the CGL policy, to defend suits against the District. The District contends it
       should not be required to prove the ISDA “requested” the work of Woods reflected in the
       disputed invoices when the work underlying the invoices benefitted the investigation or

                                                -13-
       defense of the suits against the District and the remediation the District sought. The District
       contends the circuit court erroneously classified certain expenses as remediation expenses
       when they were in fact litigation defense costs as well, for which the ISDA should share
       responsibility.
¶ 55       The ISDA contends the District’s burden at the stipulated bench trial was the same with
       or without “at our request” language in the policy that the circuit court duly noted. The ISDA
       points out that had the District not hired the same individual for its remediation work that the
       ISDA hired as a litigation expert, the dispute between the parties would not have arisen. In
       any event, it remained the District’s burden to prove, by preponderance of the evidence, that
       any so-called “dual purpose” billings weighed in favor of an expense for litigation defense
       and against an expense for remediation. The ISDA points to the absence of a provision in the
       CGL policy for equally sharing so-called “dual purpose” expenses. The ISDA contends the
       District’s challenge to the outcome of the trial concerns the circuit court’s assessment of the
       evidence, not some sort of misallocation of the District’s burden.
¶ 56       Each of the invoices contested by the District was for work performed subsequent to the
       District’s retention of Woods for its own remediation purposes. Indeed, Woods’ testimony
       was that his litigation work was “winding up” toward the end of April of 2001. The four
       invoices contested by the District, with the earliest dated June 14, 2001, were billed directly
       to the District, unlike previous bills, which were billed to defense counsel. The District
       internally coded all of Woods’ invoices it received directly as construction, capital
       improvement, or operation and maintenance costs.
¶ 57       Woods testified that he considered the June 14, 2001, invoice to be the responsibility of
       the District. He stated that all of the work invoiced for August 16, 2001, was done pursuant
       to his contract with the school board. He testified that the October 1, 2001, invoice “was
       needed for the remediation, but it could be used for the forensic[s].” The final invoice, dated
       December 31, 2001, contained a single line entry that expressly pertained to a meeting
       regarding remediation. Woods testified that other line items on this invoice “could have been
       used for both,” but later stated line items were performed for remediation and “were not
       intended for the lawsuit.” Nonetheless, Woods noted that most of the work reflected in the
       invoices “could” have been used for litigation in addition to remediation.
¶ 58       At the bench trial on the stipulated facts, the circuit court was asked to decide whether
       the services in the disputed invoices were “incurred by [the District] at [the ISDA’s] request
       to assist [the ISDA] in the investigation or defense of the claim or ‘suit,’ ” under the
       language of the policy. Whether Woods’ services could have been used for litigation, and not
       solely for purposes of remediation, was rendered a factual question, which fell to the circuit
       court to resolve as trier of fact. The court did precisely that. The circuit court did not rule that
       absent a directive from the ISDA authorizing Woods’ work all of the disputed invoices were
       the responsibility of the District. Rather, the circuit court properly sifted through each line
       item in the invoices to determine whether the invoices, which undoubtedly arose at the
       direction of the District, were predominately for remediation or litigation. The court
       concluded that the ISDA had to reimburse the District for the April 26, 2001 invoice and the
       May 16, 2001 invoice, because the line items concerned litigation defense matters, not
       because there was a showing that the ISDA expressly “requested” the work to be performed.

                                                  -14-
       As we noted, the ISDA does not challenge these findings on appeal.
¶ 59        We reject the District’s contention that the circuit court’s reference to the policy language
       should somehow be understood as enhancing the District’s burden at trial. Based on our de
       novo review, the District’s burden was never enhanced by the circuit court below. The
       District’s burden before the circuit court was to demonstrate that the disputed invoices
       predominately concerned litigation work, not remediation work. Based on the circuit court’s
       judgment, the District did not meet its burden below.
¶ 60        We also agree with the ISDA that the District attempts to make more out of the language
       in paragraph 4 of the supplementary payments of the policy than is supported by the record.
       The District’s novel claim that the circuit court’s rejection of the District’s “dual purpose”
       argument is the product of some sort of misunderstanding by the circuit court regarding the
       District’s burden of proof on the issue is not only misguided but unsupported by any case
       law. Nor does the record support the District’s suggestion that Woods was engaged to do
       “dual purpose” work. As the circuit court expressly found, Woods was “originally retained
       by [the] ISDA defense counsel, Robert Smyth, but then separately retained by [the District]
       for its own purposes.” (Emphasis added.) The District disingenuously attempts to use the
       timing of the hiring of Woods to bolster its argument that it should not have been required
       to obtain the ISDA’s consent for Woods’ “dual purpose” work because the “ISDA had
       already given its overall approval to Woods’ retention.” The distinct and separate hiring of
       Woods by the ISDA and the District amply supports the circuit court’s resolution of the
       disputed invoices in the ISDA’s favor. Clearly, the ISDA did not approve all of the work
       performed by Woods. The circuit court properly rejected the District’s facile claim that the
       hiring of Woods by the ISDA triggered a duty to reimburse the District for the invoices that
       arose, following its hiring of Woods, for his efforts at remediation.
¶ 61        The cases cited by the District do not support a result contrary to one reached by the
       circuit court. “[I]t is the insured that must carry the burden of proof on the existence, amount,
       and reasonableness and necessity of the site investigation expenses as defense costs, and it
       must do so by the preponderance of the evidence.” Aerojet, 948 P.2d at 924. Whether
       expenses are remedial or defense-related “will depend upon the facts.” Continental Casualty,
       489 A.2d at 544. Nor does the language in another California case cited by the District help
       its cause. “ ‘If site investigation expenses must be incurred by the insurer in fulfilling its duty
       to defend the insured, they must be incurred. *** Even if the insured may happen to derive
       some added benefit, the insurer does not shoulder any added burden. The insurer may not be
       heard to complain.’ ” (Emphasis added.) Barratt American, Inc. v. Transcontinental
       Insurance Co., 125 Cal. Rptr. 852, 859 (Cal. App. 2002) (quoting Aerojet, 948 P.2d at 925).
       As always, “if” conveys far more than its two letters suggest. It is undoubtedly true that the
       insurer will not be heard to complain when the insured proves “site investigation expenses”
       had to be incurred to fulfill the insurer’s duty to defend the insured. In the instant case, the
       inescapable conclusion is the District failed to meet that burden. The other cases the District
       cites, General Accident Insurance Co. of America v. State of New Jersey, Department of
       Environmental Protection, 672 A.2d 1154 (N.J. 1996), American Bumper & Manufacturing
       Co. v. Hartford Fire Insurance Co., 550 N.W.2d 475 (Mich. 1996), and State v. Blank, 745
       F. Supp. 841 (N.D. N.Y. 1990), are equally inapposite. Those cases involved governmentally

                                                 -15-
       mandated investigations that were necessary for the defense in the litigation, unlike Woods’
       work in the invoices before us.
¶ 62        We are given no reason to disturb the findings of the court below that the contested
       expenses were incurred pursuant to Woods’ engagement by the District and not at the
       ISDA’s request, as the policy requires for reimbursement. The District failed to meet its
       burden before this court to demonstrate that the circuit court’s findings were contrary to the
       manifest weight of the evidence presented. Haarmann, 389 Ill. App. 3d at 570. The circuit
       court’s findings do not reflect some sort of enhanced burden imposed on the District based
       on the policy language; rather, the findings were in line with the evidence that each of the
       disputed invoices was the sole responsibility of the District, which arose from its remediation
       efforts. We also agree with the circuit court’s observation that nothing in the CGL policy
       provides support for the District’s proposition that remediation invoices should be split
       evenly between the insurer and insured when the underlying work “could” have aided the
       litigation.
¶ 63        Upon our review of the record, the circuit court’s conclusions regarding each of the
       disputed invoices were not contrary to the manifest weight of the evidence. Rather, the record
       evidence supports that the work reflected in the disputed invoices was not requested by the
       ISDA or required to fulfill the ISDA’s duty to defend the District.

¶ 64                                       CONCLUSION
¶ 65       We decline the District’s invitation to extend the targeted tender rule beyond cases
       involving concurrent insurance policies, as the only context in which our supreme court has
       applied the rule. Because the District’s insurance policies were all consecutive, the selective
       tender rule did not apply to compel the ISDA to defend alone, without the prospect of
       equitable contribution from other insurers, the mold lawsuits against the District. We reverse
       the summary judgment granted to the District on counts II, III, and IV of the ISDA’s
       amended complaint. We reject the District’s cross-appeal that the circuit court erred in its
       judgment that certain invoices from the mold expert, retained separately by the ISDA and the
       District, were for litigation purposes and therefore subject to reimbursement under the CGL
       policy. We affirm the judgment in favor of the ISDA following the stipulated bench trial. We
       remand for further proceedings consistent with this opinion.

¶ 66      Reversed in part and affirmed in part; cause remanded.




                                                -16-
