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                                     Appellate Court                         Date: 2018.02.22
                                                                             15:30:31 -06'00'




           United Conveyor Corp. v. Allstate Insurance Co., 2017 IL App (1st) 162314



Appellate Court          UNITED CONVEYOR CORPORATION, Plaintiff-Appellant, v.
Caption                  ALLSTATE INSURANCE COMPANY, as Successor in Interest to
                         NORTHBROOK INSURANCE COMPANY, NORTHBROOK
                         EXCESS AND SURPLUS INSURANCE COMPANY, and
                         NORTHBROOK PROPERTY AND CASUALTY INSURANCE
                         COMPANY; THE CENTRAL NATIONAL INSURANCE
                         COMPANY OF OMAHA; COLUMBIA CASUALTY COMPANY;
                         FEDERAL INSURANCE COMPANY; TIG INSURANCE
                         COMPANY, Formerly Known as INTERNATIONAL INSURANCE
                         COMPANY; NATIONAL SURETY CORPORATION; and
                         ST. PAUL SURPLUS LINES INSURANCE COMPANY,
                         Defendants (The Travelers Indemnity Company; Travelers Casualty
                         and Surety Company, Formerly Known as The Aetna Casualty and
                         Surety Company, Defendants-Appellees).



District & No.           First District, Second Division
                         Docket No. 1-16-2314



Filed                    December 5, 2017



Decision Under           Appeal from the Circuit Court of Cook County, No. 12-CH-30321; the
Review                   Hon. Franklin U. Valderrama, Judge, presiding.



Judgment                 Affirmed; protective order vacated.
     Counsel on                Jenner & Block LLP, of Chicago (Barry Levenstam, Christopher C.
     Appeal                    Dickinson, and Jennifer S. Senior, of counsel), for appellant.

                               Dentons US LLP, of Chicago (Donna J. Vobornik, Steven L. Merouse,
                               and Shannon Y. Shin, of counsel), for appellees.



     Panel                     JUSTICE MASON delivered the judgment of the court, with opinion.
                               Justices Pucinski and Hyman concurred in the judgment and opinion.


                                                 OPINION

¶1         In this insurance declaratory judgment action, the insured, plaintiff United Conveyor
       Corporation (United), appeals the trial court’s entry of summary judgment in favor of the
       insurers, defendants The Travelers Indemnity Company and Travelers Casualty and Surety
       Company (Travelers), claiming the trial court erred in finding that United’s asbestos related
       losses resulted from the single occurrence of continuous manufacturing and selling
       ash-handling conveyor systems containing asbestos parts. The insurance policies carried a
       higher aggregate limit than the per-occurrence limit.1 United claims that the asbestos losses
       should have been characterized as multiple occurrences because the asbestos exposure resulted
       from the separate installation and maintenance of the custom-designed conveyor systems.
       United also claims the trial court abused its discretion in denying United’s motion for leave to
       amend its complaint after entry of summary judgment in Travelers’ favor because the proposed
       amendment would have conformed the complaint to the arguments the parties raised during the
       summary judgment hearing and to the evidence adduced during discovery. Finding no error in
       the trial court rulings, we affirm.

¶2                                           BACKGROUND
¶3         Founded in 1920, United is a family owned engineering company. United’s business
       consists of designing, manufacturing, and selling ash-handling conveyor systems for coal
       plants according to each customer’s individual specifications. United’s ash-handling conveyor
       systems remove ash and other byproducts from furnaces where coal is burned and transport the
       ash to holding tanks through pipes sealed with gaskets. The gaskets prevent ash from escaping
       into the air. United’s customers installed, operated, and maintained each conveyor system. A
       United field engineer would, as needed, assist customers with the system’s assembly,
       installation, initial operation, and maintenance, but United did not independently install and
       maintain the conveyor systems.
¶4         United designed each conveyor system according to its customer’s specifications and
       supplied various component parts, including nuts, bolts, rivets, and cement used to assemble

             1
            The combined difference that Travelers would have to pay adopting a multiple occurrence position
       instead of a single occurrence position is $9.65 million.

                                                     -2-
       the system. From the 1930s to early 1984, United sold asbestos-containing gaskets
       manufactured by a third party that were used as a component in the conveyor system’s
       assembly. In the 1930s, United also sold raw chysotile asbestos supplied by third parties and
       Lumnite cement that United’s customers would mix with water to form asbestos cement. The
       cement was used on gaskets to create an airtight and heat-resistant seal between pipes in the
       conveyor systems. From the 1940s through 1979, United compounded and sold the brand
       name product “Nuvaseal” cement for use in the assembly, installation, and maintenance of the
       conveyor systems. United mixed asbestos fibers and Lumnite cement to form the Nuvaseal
       product, to which United’s customers added water, forming the cement sealant. Nuvaseal was
       an ancillary component in the conveyor system.
¶5         Gaskets were used, as necessary, in the assembly of and as replacement parts for United’s
       conveyor systems. Repairing a gasket involved chipping off hardened Nuvaseal. Not all of
       United’s conveyor systems required asbestos containing products. Asbestos generally was a
       component in conveyor systems operating under high temperatures that required sealants to
       withstand the intense heat expelled from coal burners, but asbestos was unnecessary in systems
       operating at low temperatures.
¶6         From 1952 to 1977, Travelers issued United several primary-level comprehensive general
       liability and umbrella liability policies. Travelers issued 22 policies from December 3, 1952, to
       December 31, 1974, which had aggregate limits that were higher than the per-occurrence
       limits.2 In these policies, the term “occurrence” was consistently defined as “an accident,
       including continuous or repeated exposure to conditions, which results in bodily injury.” The
       number of occurrences determined whether the policies’ per-occurrence limits or higher
       aggregate limits applied.
¶7         Beginning in 1983, United was named as a defendant in thousands of lawsuits filed in
       multiple jurisdictions by individuals claiming to have sustained bodily injury allegedly from
       inhaling asbestos fibers from asbestos containing products in United’s conveyor systems while
       installing, maintaining, or repairing the systems. Travelers defended United against the suits
       under a full reservation of rights. In particular, Travelers reserved the right to enforce the
       policies’ applicable “limits of liability.”
¶8         On January 21, 2009, United received a letter from Travelers, stating the insurer’s position
       that “all of the primary policies issued by Travelers to United have been exhausted,” which
       United interpreted to mean that the policies’ per-occurrence, and not the aggregate, limits
       applied. The record contains no contemporaneous writings reflecting United’s disagreement
       with this position or its belief that, until 2009, Travelers treated the design and installation of
       each conveyor system as a separate occurrence.
¶9         More than three years later, on August 8, 2012, United filed a complaint, seeking a
       declaration that the asbestos claims constituted multiple occurrences, triggering the policies’
       higher aggregate limits and not the per-occurrence limits. United’s complaint also included a
       breach of contract count, asserting that Travelers’ treatment of the asbestos losses as a single
       occurrence breached the policies’ terms and conditions.
¶ 10       After several years of litigation, United filed a motion for partial summary judgment,
       asserting that the underlying asbestos claims arose out of multiple occurrences—the

          2
            The policies Travelers issued from December 31, 1974, to December 31, 1977, contained identical
       per-occurrence and aggregate limits, and those policies are not at issue in this appeal.

                                                    -3-
       installation and ongoing maintenance of each of the conveyor systems—and that Travelers
       breached the insurance policies by contending that the underlying asbestos claims arose from a
       single occurrence. United also asserted that Travelers waived and was estopped from asserting
       the argument that the underlying asbestos bodily injury claims constituted a single occurrence
       because Travelers failed to reserve its rights under the policies, given that it treated and
       defended United’s asbestos losses as multiple occurrences for decades.
¶ 11       On March 13, 2015, Travelers cross-moved for summary judgment, asserting that the
       underlying asbestos claims arose from a single occurrence because they were based on
       United’s continuous manufacture and sale of conveyor systems containing asbestos
       components. Travelers also asserted that United’s waiver and estoppel claims were themselves
       waived because the claims were not included in United’s complaint. United opposed
       Travelers’ cross-motion for summary judgment, but United did not move to amend its
       complaint in response to Travelers’ assertion that it was precluded from pursuing its waiver
       and estoppel claims because they were not pled in the complaint.
¶ 12       During the litigation, the parties stipulated that,
               “[f]or purposes of determining the limit of [Travelers’] liability, all bodily injury and
               property damage arising out of continuous or repeated exposure to substantially the
               same general conditions shall be considered as arising out of one occurrence.”
¶ 13       On January 25, 2016, after a hearing on the summary judgment motions, the trial court
       denied United’s motion and granted Travelers’ motion, finding that the underlying asbestos
       claims arose from the continuous manufacture and sale of the conveyor systems that used
       asbestos containing materials, which constituted a single occurrence. The trial court declined
       to rule on the merits of United’s waiver and estoppel claims because they were not raised in
       United’s complaint.
¶ 14       On February 16, 2016, United filed a motion for leave to amend its complaint to add a
       cause of action and supporting factual allegations, seeking a declaration that Travelers waived
       the ability to assert that the asbestos claims arose from a single-occurrence or, alternatively,
       was estopped from asserting that position. Travelers opposed the motion, asserting that United
       failed to establish the factors required under Loyola Academy v. S&S Roof Maintenance, Inc.,
       146 Ill. 2d 263 (1992), to warrant a postsummary judgment amendment to a complaint. After
       considering the Loyola factors, the trial court denied United’s motion for leave to amend,
       finding that United did not meet its burden. Because cross-claims among the defendants
       remained pending, the trial court entered a finding under Illinois Supreme Court Rule 304(a)
       (eff. Feb. 26, 2010) that there was no just reason to delay enforcement or appeal of its rulings.
       United timely appealed the trial court’s summary judgment rulings and the denial of its motion
       for leave to amend.

¶ 15                                           ANALYSIS
¶ 16       We must first address the fact that the entire record in this case, as well as the parties’
       briefs, has been filed under seal. The parties’ motion to seal the record and briefs was granted
       by another panel of this court before the briefs were filed and there was any opportunity to
       examine in detail the substantial record.
¶ 17       We have now had the opportunity to examine both the record and the briefs, and we fail to
       see any justification for maintaining this case under seal. There have been countless lawsuits


                                                   -4-
       over the past several decades involving insureds seeking coverage for asbestos-related
       personal injury claims. We are unaware of any practice to place these publicly-filed lawsuits
       under seal.
¶ 18        United represents that in the trial court, the parties entered into an agreed protective order,
       which the trial court approved. But instead of selectively designating truly confidential
       material pursuant to that order, the parties, evidently by agreement, designated virtually
       everything produced in discovery, entire deposition transcripts, and their briefs on summary
       judgment as confidential. This wholesale effort to keep vast amounts of information out of the
       public record is unwarranted.
¶ 19        Judicial records and documents are presumptively open to the public. Skolnick v. Altheimer
       & Gray, 191 Ill. 2d 214, 230 (2000). Our supreme court has deemed public access to court
       records “essential to the proper functioning of a democracy” because “citizens rely on
       information about our judicial system in order to form an educated and knowledgeable opinion
       of its functioning.” Id. Public access to court files is essential to the public’s right to monitor
       the functioning of the court system to ensure quality, honesty, and respect for our legal system.
       Id.; see also Coy v. Washington County Hospital District, 372 Ill. App. 3d 1077, 1079 (2007).
       The desire of litigants to restrict public access to judicial records is an insufficient basis to
       override the presumption of openness. “Courts cannot honor such requests without seriously
       undermining the tradition of an open judicial system.” In re Marriage of Johnson, 232 Ill. App.
       3d 1068, 1075 (1992). We caution trial courts that placing essentially an entire court file under
       seal is warranted only in the most compelling circumstances, which we do not find exist here.
¶ 20        Since 1983, United has been a defendant in, by its own count, thousands of asbestos-related
       lawsuits filed across the country. There has been, no doubt, extensive discovery conducted by
       the plaintiffs in those lawsuits regarding the ash-conveyor systems designed by United,
       including what asbestos-containing components were furnished as part of those systems.
       Despite the fact that United ceased using asbestos-containing parts and materials in its systems
       in 1984, it contends that the public disclosure of the design of those systems could cause it
       competitive harm. But United points to no engineering drawings contained in the record, let
       alone those that could even arguably support the conclusion that decades-old designs using
       since-discontinued materials and parts could place United at a competitive disadvantage.
¶ 21        United also seeks to maintain the secrecy of the record and briefs on the ground that they
       disclose privileged communications between defense counsel and United in the underlying
       cases. Citing Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d
       178 (1991), United claims that attorney-client communications between it and its defense
       lawyers should be protected from disclosure to its adversaries in the underlying cases, a
       proposition with which we do not disagree. But United has failed to identify in this record a
       single such communication relevant to the issues we are called upon to decide. For example,
       United points to the testimony of Michael Heintzman, its national coordinating counsel, whose
       deposition transcript has been sealed. But the portions of its briefs United identifies as
       discussing that testimony reveal only that United never settled asbestos claims “absent a
       reasonable anticipation of liability” and that the “key thing,” according to Heintzman, was that
       the plaintiff “had to be able to show exposure to [an] asbestos-containing component within
       the system.” Heintzman also revealed that in depositions of plaintiffs in the underlying
       lawsuits, defense counsel tried to elicit whether there was any “real exposure that was
       sufficient that it could cause disease” and would ask whether the plaintiff “actually work[ed]

                                                    -5-
       on the system” or “actually attach[ed] any component that might have contained asbestos.”
       None of this would come as a surprise to an attorney representing a plaintiff pursuing a
       personal injury claim based on exposure to asbestos.
¶ 22       United also cites as confidential testimony from Michael W. Jacobs, a consultant
       overseeing United’s litigation activity. Again, an examination of the portions of United’s
       briefs discussing Jacobs’s testimony reveals nothing remotely confidential. For example,
       Jacobs testified that the Nuvaseal cement and gaskets supplied to United’s customers were
       “ancillary components” of its ash conveyor systems, an argument that United raises here and
       has no doubt raised in most of the underlying lawsuits. Jacobs also refers to a nearly
       20-year-old letter from a defense lawyer in an underlying case referring to the “great
       variability” in United’s ash conveyor systems and the necessity for United’s staff to review
       drawings and field service reports for each system to determine “what kinds of systems were
       installed and when; what types of asbestos materials were used in the assembly, what kinds of
       asbestos materials were used to maintain the system and how frequently they were replaced.”
       Undoubtedly, this is precisely the type of information sought in discovery by the underlying
       plaintiffs.
¶ 23       Finally, United contends that loss run reports provided by Travelers identify underlying
       plaintiffs by name and would thus disclose settlement amounts in those cases. But United does
       not represent that confidentiality was a condition of the settlements reached with underlying
       claimants, and so we decline to find that such information should be maintained under seal.
¶ 24       In short, we can discern no reason why this case warrants the extraordinary step of
       maintaining the entire record on appeal and the briefs under seal. We, therefore, vacate the
       January 20, 2017, order allowing the same.
¶ 25       United first claims that the trial court erred in entering summary judgment in Travelers’
       favor based on its finding that the asbestos claims resulted from a single occurrence. United
       asserts that the underlying asbestos claims did not relate to the continuous or repeated exposure
       to asbestos arising out of a single occurrence under the policy, but from separate occurrences
       relating to each conveyor system’s installation and maintenance.
¶ 26       Summary judgment is appropriate “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 2012); Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). The purpose of summary
       judgment is not to try a question of fact, but to determine if one exists. Robidoux v. Oliphant,
       201 Ill. 2d 324, 335 (2002). We review de novo the trial court’s ruling on a motion for
       summary judgment (Williams, 228 Ill. 2d at 417) as we do the trial court’s interpretation of the
       provisions of an insurance policy (Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d
       11, 17 (2005)).
¶ 27       Both parties recognize that Illinois has adopted the “cause” theory of liability to determine
       the per-occurrence limit, or stated differently, whether a single or multiple incidents occurred.
       Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 420 (2006);
       United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App. 3d 598, 648 (1994). Under
       the “cause” theory, the number of occurrences is decided by determining the cause of the
       damage rather than looking at the consequences of the damage. Gypsum, 268 Ill. App. 3d at
       648. In contrast, the “effect” theory of liability looks to the consequences of the damage—the
       number of individual claims or injuries. Id. at 648-49.

                                                   -6-
¶ 28        United asserts that Nicor, which treated 195 instances of the release of mercury as separate
       occurrences, is dispositive. Travelers contends Gypsum, where 200 claims for property
       damage resulting from Gypsum’s manufacture and sale of asbestos containing building
       materials were considered a single occurrence, warrants affirmance.
¶ 29        In Nicor, the issue was whether Nicor, a supplier of natural gas to residential customers,
       was required to satisfy the single occurrence self-insured retention (or deductible) for each
       property damage claim against it or whether the claims arose from a single course of conduct
       so that Nicor was only required to satisfy one deductible. Nicor, 223 Ill. 2d at 416. The
       deductible was a minimum of $100,000 per occurrence. Id. at 414. The practical effect of the
       ruling was that if Nicor was required to satisfy a deductible for each claim, it would likely be
       unable to access insurance coverage at all, since the value of most of the property damage
       claims was less than the single occurrence deductible.
¶ 30        The case arose from Nicor’s replacement of natural gas regulators in its customers’
       residences. Id. at 411. Although the vast majority of replacements in approximately 300,000
       homes were accomplished without incident, about 195 homes were exposed to mercury that
       spilled from the natural gas regulators. Id. at 412, 434. Our supreme court observed that if the
       loss resulted from the manufacture and sale of defective products—the regulators containing
       mercury—the loss would have emanated from a single cause, and there would be one
       occurrence under the applicable polices. Id. at 432. Ultimately, the court held that each
       asserted loss arising from the replacement of the regulators was a separate occurrence caused
       by independent intervening negligence of the workers who replaced the meters. Id. at 431-32.
       The court observed that Nicor’s liability arose only when mercury spilled from an old-style
       regulator that was being replaced with a new mercury-free regulator. Id. at 433. Specifically,
       the court noted that the mercury spills were extremely rare, sporadic, lacked a common cause,
       and were not derived from “one event” or an uninterrupted process. Id. at 433-34. The court
       concluded that the cause of the mercury exposure was the negligent replacement of the meters
       and not the actual presence of mercury in the meters. Id. at 432-33. Because the negligent
       removal of the meters caused the mercury exposure and ensuing property damage, which was
       not necessarily repeated in each customer’s home, the court determined that each of the 195
       mercury spills constituted a separate occurrence and, thus, Nicor was required to satisfy the
       deductible for each occurrence. Id. at 434-35.
¶ 31        In Gypsum, the insured, Gypsum, manufactured and sold asbestos containing building
       materials. Gypsum, 268 Ill. App. 3d at 647. More than 200 property damage claims 3 were
       brought resulting from the installation of Gypsum’s products in schools and other public
       buildings. Id. at 607. Gypsum, seeking to avoid liability for multiple per occurrence
       deductibles, characterized its conduct in manufacturing and selling asbestos-containing
       building materials as a single continuous process. Id. at 614, 647. Gypsum argued that its
       conduct fell within the policies’ provision for the “continuous or repeated exposure to
       substantially the same condition,” or a “common defect, condition or cause,” both of which
       were treated as a single occurrence. Id. at 647-48. After an exhaustive discussion of authorities
       in Illinois and elsewhere, this court concluded that “[i]t would be unwise and without support
       in case law to determine that each installation of the asbestos-containing products constituted a

           3
           The case also involved personal injury claims against Gypsum, but those claims were severed
       from the property damage claims and were not at issue in the appeal. Gypsum, 268 Ill. App. 3d at 604.

                                                     -7-
       separate occurrence when Gypsum’s liability is predicated on its involvement in the
       manufacture and sale of the products rather than the installation of the products.” Id. at 651.
       Because Gypsum engaged in the continuous process and repetitive conduct of manufacturing
       and selling asbestos containing building materials, the court determined that the 200 property
       damage claims were the product of a single occurrence. Id. at 650-51. Consequently, Gypsum
       was only obligated to satisfy the single occurrence deductible.
¶ 32       The issue here relates not to whether United must satisfy a single deductible or multiple
       deductibles, but whether Travelers’ liability under the policies is measured by the single
       occurrence limit or the higher aggregate limits. Indeed, were we considering the same issue
       presented in Nicor and Gypsum, we would conclude that United must satisfy only a single
       occurrence deductible or self-insured retention. But while the context is different, the result
       should be the same: if an insured’s conduct is a single occurrence for purposes of establishing
       the applicable deductible, it should be the same for purposes of setting the limits of the
       insurer’s liability.
¶ 33       Similar to the insured in Gypsum, the cause of United’s loss was the continuous
       manufacture and sale of its conveyor systems incorporating asbestos containing products
       (Nuvaseal and asbestos cement) and gaskets used to create a heat resistant seal in the conveyor
       system’s component parts. The fact that each system was designed to the customer’s
       specifications—and thus the systems were not mass produced—is true, but beside the point.
       The single, unitary cause of claims against United is the fact that it incorporated
       asbestos-containing components or products into each of its systems designed for high-heat
       operations. Contrary to United’s position, the cause of its loss was not attributable to the
       installation and maintenance by United’s customers of each conveyor system that contained
       asbestos products. Likewise, unlike Nicor, no separate human intervening event attributable to
       the conveyor system’s installation and maintenance is involved. Specifically, the installation
       and maintenance by United’s customers did not give rise to United’s liability; its
       manufacturing activities did. Based on Gypsum, the claims against United related to a single
       occurrence and, as a consequence, the per-occurrence limit applied.
¶ 34       United next claims that the trial court abused its discretion in denying its motion for leave
       to amend its complaint to include a count asserting that Travelers waived and was estopped
       from advocating its position that the losses constituted a single-occurrence based on loss run
       reports Travelers sent to United, reservation of rights letters, and internal Travelers e-mails.
       United asserts that until 2009, Travelers shared United’s view that the asbestos losses arose
       from multiple occurrences subject to the higher aggregate limit. United further asserts that
       Travelers failed to effectively reserve its rights regarding the number of occurrences after it
       began defending United in the 1980s.
¶ 35       Section 2-1005(g) of the Code of Civil Procedure allows a litigant to amend pleadings
       upon just and reasonable terms before or after the entry of summary judgment. 735 ILCS
       5/2-1005(g) (West 2008). Illinois law adopts a liberal policy regarding amendments of
       pleadings, but the right is not unlimited, and there is no absolute right to amend a complaint.
       Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467 (1992); Freedberg v. Ohio National
       Insurance Co., 2012 IL App (1st) 110938, ¶ 41; Grove v. Carle Foundation Hospital, 364 Ill.
       App. 3d 412, 417 (2006). We review the trial court’s ruling on a plaintiff’s motion to amend a
       complaint for an abuse of discretion. Loyola Academy, 146 Ill. 2d at 273-74; Freedberg, 2012
       IL App (1st) 110938, ¶ 40; Martin v. Yellow Cab Co., 208 Ill. App. 3d 572, 576 (1990). An

                                                   -8-
       abuse of discretion occurs only where no reasonable person would take the view adopted by
       the trial court. In re Marriage of Schneider, 214 Ill. 2d 152, 173 (2005).
¶ 36        In Loyola Academy, 146 Ill. 2d at 273, our supreme court articulated four factors a court
       must consider when ruling on a postsummary judgment motion to amend: “(1) whether the
       proposed amendment would cure the defective pleading; (2) whether other parties would
       sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed
       amendment is timely; and (4) whether previous opportunities to amend the pleading could be
       identified.” The party seeking leave to amend bears the burden of demonstrating that all four
       factors favor the relief requested. I.C.S. Illinois, Inc. v. Waste Management of Illinois, Inc., 403
       Ill. App. 3d 211, 220 (2010).
¶ 37        We have considered each of the Loyola factors and find that the trial court did not abuse its
       discretion in denying United’s motion for leave to amend. Specifically, United’s motion was
       not timely filed and United had prior opportunities to amend its complaint before the trial court
       entered its summary judgment rulings. United filed its complaint on August 8, 2012, and
       litigation proceeded for several years before the trial court ruled on the parties’ summary
       judgment motions on January 25, 2016. United’s motion for leave to amend was not timely
       because United sought to amend its complaint on February 16, 2016—22 days after the trial
       court entered its summary judgment ruling and more than three years after it filed its
       complaint. See Anger v. Gottfried, 29 Ill. App. 3d 559, 563-64 (1975) (plaintiff’s motion for
       leave to amend—filed approximately 7 months after filing the complaint, 5 months after the
       defendant’s summary judgment motion, and 50 days after the trial court granted summary
       judgment in defendant’s favor—was not timely filed).
¶ 38        Nothing in the record reveals that United relied on the discovery of any new facts to
       support its untimely request to amend. Indeed, United’s purported amendment to include the
       waiver and estoppel counts relied on facts known to United when (and long before) it filed its
       complaint. Specifically, United’s waiver and estoppel claims relied in large part on its
       assertion that Travelers’ generation of loss run reports, showing that more than the
       per-occurrence limits had been charged against polices, evidenced Travelers’s belief that the
       higher aggregate limits applied. While we could debate the merits of United’s position given
       Travelers’ consistent reservation of its right to invoke the applicable limits of liability in its
       policies, it is nevertheless obvious that United was aware, when it filed this case in 2009, of
       what it now claims is Travelers’ “change” in position. And United has offered no persuasive
       argument as to why it was unable to include its waiver and estoppel claims in its original
       complaint.
¶ 39        Furthermore, to the extent that United claims it relied on additional information disclosed
       in discovery, such as internal Travelers e-mails, it still offers no justification for its delay in
       asserting these claims until after it had lost on summary judgment. Indeed, in its own summary
       judgment motion, United argued that “in 2009, Travelers advised United for the first time that
       all its primary-level policies had been exhausted, a position apparently based on the incorrect
       premise that the Asbestos Claims constitute a single ‘occurrence.’ ” United further contended
       that “Travelers is estopped and/or has waived any right to take a single occurrence position
       now, having undertaken and handled United’s defense while treating the Asbestos Claims as
       separate occurrences for decades.” Thus, United was in possession of all the facts it claims
       support its waiver and estoppels claims well in advance of the trial court’s ruling on the
       cross-motions for summary judgment. Martin, 208 Ill. App. 3d at 577 (motion for leave to

                                                    -9-
       amend properly denied where the same facts were available when the plaintiff filed the motion
       to amend that were available when the plaintiff filed the complaint 20 months earlier). And
       Travelers’ cross-motion for summary judgment asserted that United was foreclosed from
       arguing waiver and estoppel because United never pled such claims. Thus, despite sufficient
       knowledge of relevant facts and an adequate opportunity to do so, United did not seek leave to
       amend its complaint until after the trial court granted summary judgment in Travelers’ favor.
       Consequently, this Loyola factor weighs against granting leave to amend.
¶ 40       Moreover, United’s amended complaint was not seeking to cure a defect in the complaint,
       but to add a new cause of action after the entry of summary judgment in Travelers’s favor.
       United’s proposed amended complaint alleged that Travelers waived and was estopped from
       asserting its position that the losses incurred by United were not separate occurrences, but a
       single occurrence. See Jones v. O’Brien Tire & Battery Service Center, Inc., 374 Ill. App. 3d
       918, 937 (2007) (noting the difference between adding a new cause of action and curing a
       defective pleading). Importantly, in United’s motion for leave to amend its complaint, United
       expressly stated that it sought to amend its complaint “principally to add a cause of action and
       supporting factual allegations.” (Emphasis added.) Consequently, United’s amended
       complaint would not cure a defect in the original complaint, but instead would add the new
       waiver and estoppel count, as well as new allegations that Travelers inadequately reserved its
       rights on the number of occurrences. Because United sought to add new allegations,
       particularly regarding the sufficiency of Travelers reservation of rights, Travelers would have
       been prejudiced by having to defend against an entirely different claim after summary
       judgment had been entered in its favor more than three years after United filed its complaint.
       Hartzog v. Martinez, 372 Ill. App. 3d 515, 525 (2007). United’s postjudgment request to
       amend is an improper attempt to circumvent the unfavorable summary judgment rulings.
       Freedberg, 2012 IL App (1st) 110938, ¶ 44.
¶ 41       None of the Loyola factors favored United’s untimely request to amend and, thus, the trial
       court did not abuse its discretion in denying United’s motion.
¶ 42       Because we find that, under Gypsum, United’s asbestos losses resulted from a continuous
       and systematic process, Travelers’ lower per-occurrence limit applies, and the trial court did
       not err in entering summary judgment in Travelers’ favor and denying United’s summary
       judgment motion. We also find that the trial court did not abuse its discretion in denying
       United’s motion for leave to amend because United failed to satisfy any of the Loyola factors.
       For these reasons, we affirm the trial court’s summary judgment rulings and its ruling denying
       United’s motion for leave to amend. Finally, we vacate the January 20, 2017, order allowing
       the record and the briefs in this case to be filed under seal.

¶ 43      Affirmed; protective order vacated.




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