                                       2018 IL App (1st) 163398
                                            No. 1-16-3398
                                             May 15, 2018

                                                                              SECOND DIVISION



                                                 IN THE


                                 APPELLATE COURT OF ILLINOIS


                                           FIRST DISTRICT



     LAMORAK INSURANCE COMPANY                      )      Appeal from the Circuit Court
     f/k/a Commercial Union Insurance               )      of Cook County.
     Company, f/k/a Employers                       )
     Commercial Union Insurance Company,            )
                                                    )      Nos. 12 CH 42887
     Plaintiff and Counterdefendant-Appellant,      )
                                                    )      The Honorable
            v.                                      )      Rodolfo Garcia,
                                                    )      Judge Presiding.
     KONE, INC., and LIBERTY MUTUAL                 )
     INSURANCE COMPANY,                             )
                                                    )
     Defendants and Counterplaintiffs-Appellees.    )


                 PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                 Justices Pucinski and Mason concurred in the judgment and opinion.


                                             OPINION

¶1          When a former employee sued Kone, Inc. (Kone), for injuries suffered due to long-term

        exposure to asbestos, Kone notified all the insurance companies that sold policies to Kone

        during the employee’s long tenure. One of the insurers, Lamorak Insurance Company

        (Lamorak), argued that the policies it sold to Kone for the years 1977 to 1985 counted as

        excess insurance because Kone had agreed to a self-insured retention (SIR) instead of a
     No. 1-16-3398


        deductible for those years. Kone filed a counterclaim that included a request for a judgment

        declaring that Lamorak’s policies provided primary coverage. The circuit court granted

        Kone’s motion for summary judgment on that part of its counterclaim. On Lamorak’s appeal

        from the partial summary judgment, we find that Lamorak’s policies bear the characteristics

        of primary insurance. Accordingly, we affirm the circuit court’s judgment.

¶2                                           BACKGROUND

¶3         In May 2012, John Nichol filed a complaint charging Kone with negligently exposing

        Nichol to asbestos and causing him to contract malignant pleural mesothelioma. Nichol

        alleged that his exposure to asbestos took place between the early 1960s and the late 1980s,

        when Nichol worked for Kone or Kone’s corporate predecessors. Kone provided notice of

        Nichol’s claim to insurers who sold liability policies to Kone and predecessor corporations

        covering the years from 1961 through 1988. One of the insurers, Lamorak, agreed to defend

        Kone, subject to a full reservation of rights.

¶4         In November 2012, Lamorak filed the complaint that initiated the case now before us.

        Lamorak, in its complaint, asked the court to enter a judgment allocating the liability to

        Nichol amongst all insurers who sold policies to Kone. Lamorak named Liberty Mutual

        Insurance Company (Liberty), Kone, and others as defendants. Lamorak admitted that its

        corporate predecessors sold insurance policies to Kone’s predecessors covering the period

        from June 30, 1971, to June 30, 1985. (We will refer to Kone and its predecessors as Kone

        and to Lamorak and its predecessors as Lamorak.) Lamorak admitted that the policies for

        1971 to 1977 provided primary coverage, subject to a deductible. For the years 1977 to 1985,

        Lamorak sold Kone both umbrella policies and other policies, subject to SIRs. The parties

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        agree that Lamorak’s umbrella policies provided excess coverage that Kone cannot reach

        until it exhausts underlying coverages. The parties disagree about Lamorak’s duties under the

        other policies, the policies at issue, which the umbrella policies listed as underlying coverage.

¶5         Lamorak alleged, and Kone admitted, that several persons other than Nichol also filed

        complaints against Kone, seeking compensation for injury or damage due to asbestos

        exposure. Lamorak sought a judgment declaring that the policies at issue imposed on

        Lamorak no duty to defend because Kone had not exhausted all of its primary insurance for

        the years 1961 through 1988. Lamorak contended that Liberty, as a primary insurer for part

        of that period, had prior responsibility for providing a defense and indemnity to Kone for

        Nichol’s claim.

¶6         Kone filed an answer to Lamorak’s complaint and a counterclaim. In count I of the

        counterclaim, Kone sought a judgment declaring that Lamorak had a duty to indemnify Kone

        for its liability to Nichol and the other persons who sued Kone. As one part of that relief,

        Kone prayed for a judgment declaring that the policies at issue count as primary insurance.

¶7         Liberty filed a motion for summary judgment on Kone’s counterclaim, contending that

        the evidence in the record showed that the policies at issue provided primary coverage. The

        parties filed with the court copies of the policies Lamorak issued to Kone for the years 1971

        to 1985. Kone and Liberty also filed other documents, with no affidavits or depositions

        explaining how they came to possess the documents. Kone alleged that it received two of the

        documents from Lamorak in response to discovery, and Liberty similarly alleged that it

        received one of the documents from Lamorak in discovery. Lamorak argued that Kone and



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        Liberty failed to authenticate all of the documents, but Lamorak did not deny the allegations

        that it had produced the three documents in discovery.

¶8         The Lamorak policy for 1976 to 1977 (the last with a deductible and not a SIR) provides:

                     “4. *** In the event of an occurrence, written notice *** shall be given by or

               for the insured to the company *** as soon as practicable.

                                                        ***

                     6. Other Insurance: The insurance afforded by this policy is primary

               insurance ***.

                     When both this insurance and other insurance apply to the loss on the same

               basis, *** the company shall not be liable under this policy for a greater

               proportion of the loss than that stated in the applicable contribution provision

               below:

                     (a) Contribution by Equal Shares ***.

                     (b) Contribution by Limits. ***

                                                        ***

                     I. Coverage A—Bodily Injury Liability ***

                     The company will pay on behalf of the insured all sums which the insured

               shall become legally obligated to pay as damages because of *** bodily injury

               *** to which this insurance applies, caused by an occurrence, and the company

               shall have the right and duty to defend any suit against the insured seeking

               damages on account of such bodily injury *** even if any of the allegations of


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       No. 1-16-3398


                 the suit are groundless, false or fraudulent[,] and may make such investigation

                 and settlement of any claim or suit as it deems expedient.”

¶9           The policy set liability limits of $500,000 per occurrence and $500,000 aggregate, subject

          to a deductible of $25,000 per occurrence and $1 million aggregate. The policy does not

          specify a total premium, but it sets an estimated annual premium of $516,000.

¶ 10         The policy at issue for 1977-78 used the same form as the 1976-77 policy, including the

          same language in paragraphs 4 and 6 and section I, concerning the duty to give notice, the

          effect of other insurance, and the duty to defend. However, the policy included a “Self-

          Insured Retention Endorsement” that modified several clauses. The endorsement provides:

                       “In consideration of the reduced premium for which this policy is issued, it is

                 agreed that the company’s obligation to pay on behalf of the insured all sums

                 which the insured shall become legally obligated to pay as damages and expenses

                 in accordance with the insurance provided by this policy *** is in excess of the

                 retained limit ***.

                       The company’s right and duty to defend any suit against the insured *** shall

                 apply solely as follows:

                       1. When the amount of all claims or suits seeking damages as a result of one

                 occurrence does not exceed the retained limit, as estimated by the company, the

                 company shall have the right but not the duty to make such investigations thereof

                 as it deems necessary but the company shall have no obligation to defend ***.

                       2. When the amount of all claims or suits seeking damages as a result of one

                 occurrence is in excess of the retained limit, as estimated by the company, the
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                 company shall have the right and duty to defend such claim or suit even if any of

                 the allegations of the claim or suit are groundless, false or fraudulent[,] and may

                 make such investigation and settlement of the claim or suit as it deems

                 expedient.”

¶ 11         The endorsement does not modify the duty to give notice of paragraph 4, but it expressly

          modified paragraph 6 as follows:

                       “ ‘Other insurance’ is amended to read:

                       The insurance afforded by this policy is excess insurance, applicable excess

                  of the retained limit, for the limit of liability stated in the declarations of this

                  policy. When both this insurance and other insurance apply to loss on the same

                  basis, the company shall not be liable under this policy for a greater proportion

                  of the loss than stated in the applicable contribution provision below:

                       (1) Contribution by equal shares ***.

                       (2) Contribution by limits.”

¶ 12         The policy sets liability limits of $2 million per occurrence and $2 million aggregate,

          subject to “retained limit[s]” of $100,000 per occurrence and $2 million aggregate. The

          policy sets its estimated premium at $1,085,000.

¶ 13         Also for the 1977-78 year, Kone purchased from Lamorak an umbrella policy, which

          provided:

                       “7. Notice of Occurrence. When an occurrence takes place which, in the

                 opinion of the Insured, involves or may involve liability on the part of the


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       No. 1-16-3398


                 company, prompt written notice shall be given by or on behalf of the Insured to

                 the company ***.

                                                        ***

                       12. Other Insurance. If any other valid and collectible insurance exists

                 protecting the Insured against ultimate net loss covered by this policy *** this

                 policy shall be null and void with respect to such loss ***; provided, however, if

                 the amounts recoverable by the Insured under such other insurance are not

                 sufficient to completely protect the Insured against such loss, this policy shall

                 apply but only as excess insurance over such other valid and collectible

                 insurance.”

¶ 14         The policy set liability limits of $5 million per occurrence and $5 million aggregate,

          subject to the underlying Lamorak policy and the SIR. The umbrella policy set its premium at

          $187,500.

          The circuit court found no need to consider any documents other than the insurance policies.

          The court entered a judgment declaring that the Lamorak policies at issue for 1977 to 1985

          all served as primary insurance. The court added a finding, pursuant to Illinois Supreme

          Court Rule 304(a) (eff. Mar. 8, 2016), of no just cause to delay enforcement or appeal from

          the declaratory judgment order. Lamorak filed a timely notice of appeal.




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       No. 1-16-3398


¶ 15                                             ANALYSIS

¶ 16                                             Jurisdiction

¶ 17         After the parties submitted their briefs on appeal, we questioned our jurisdiction and

          asked Lamorak why we should not dismiss the appeal. The circuit court’s order did not

          dispose of any count of any complaint or counterclaim, and it did not finally determine the

          rights of any party to the case. The declaratory judgment resolved only an issue that formed a

          partial basis for the relief Kone sought, as Kone requested in its counterclaim a declaration

          that the 1977 to 1985 policies imposed on Lamorak a duty to defend and indemnify Kone,

          and the declaration that the policies count as primary insurance did not fully resolve that

          claim.

¶ 18         Lamorak argued that this court has jurisdiction under the reasoning of In re Marriage of

          Best, 228 Ill. 2d 107 (2008). In Best, the husband filed a petition for divorce, and in the

          divorce proceedings, he filed a motion for a judgment declaring that a valid premarital

          agreement limited the wife’s property rights in the divorce proceeding. The circuit court

          entered a judgment finding the premarital agreement valid and added a finding of

          appealability. Best, 228 Ill. 2d at 110. Our supreme court held that the declaratory judgment

          finally resolved a separate part of the case. The court found that the husband had requested

          two distinct forms of relief: dissolution of the marriage and a judgment declaring the

          premarital agreement valid. The court said,

                   “[The] declaratory judgment could be entered even if the dissolution petition were not

                   granted. *** Under the facts and circumstances in this case, the request for

                   dissolution of the parties’ marriage and the request for declaratory judgment on the

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       No. 1-16-3398


                 validity and interpretation of the premarital agreement are not so closely related that

                 they must be deemed part of a single claim for relief.” Best, 228 Ill. 2d at 115.

¶ 19         We find that the order here finally resolves a claim separate from the other claims for

          relief. The circuit court’s declaratory judgment grants Kone and Liberty effective relief even

          if the court decides eventually to grant Lamorak the relief it seeks in its complaint. The

          declaratory judgment concerning the policies at issue could affect the liability of all insurers

          involved not only in this case, but also in all of the other cases involving claims against Kone

          for injury due to asbestos exposure. Accordingly, we find that Illinois Supreme Court Rule

          304(a) (eff. Mar. 8, 2016) gives us jurisdiction to decide the appeal.

¶ 20                                        Horizontal Exhaustion

¶ 21         The parties and the circuit court agree that Kajima Construction Services, Inc. v. St. Paul

          Fire & Marine Insurance Co., 227 Ill. 2d 102 (2007), requires horizontal exhaustion under

          the circumstances of this case. The injury to Nichol occurred as a result of repeated exposure

          to asbestos over a number of years. The insurance policies for all of those years provide some

          potentially relevant coverage. In Kajima, the parties agreed that “horizontal exhaustion

          requires an insured to exhaust all available primary limits before invoking excess coverage.”

          Kajima, 227 Ill. 2d at 113. The Kajima court explained that

                 “horizontal exhaustion is based on a recognition of the difference between primary

                 and excess insurance. *** [W]hen excess insurance exists as part of an overall

                 insurance package, it provides a secondary level of coverage to protect the insured

                 where a judgment or settlement exceeds the primary policy’s limits of liability.

                 [Citation.] Excess insurance coverage attaches only after a predetermined amount of

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                 primary insurance or self-insured retention has been exhausted. [Citation.]

                 Consequently, until the limits of primary insurance coverage are exhausted,

                 secondary coverage does not provide any collectible insurance. [Citation.] Once an

                 excess policy is triggered in a case, the limits of the primary insurance must be

                 exhausted before the excess carrier will be required to contribute to a settlement or

                 judgment.” (Internal quotation marks omitted.) Kajima, 227 Ill. 2d at 114-15.

¶ 22         The parties here agree that the umbrella policies Lamorak issued to Kone for 1977 to

          1985 count as excess insurance, and Lamorak owes nothing on those policies until Kone

          exhausts the limits of all applicable primary insurance. We must decide whether the Lamorak

          policies at issue count as excess policies or as primary policies. If the policies count as excess

          insurance, Lamorak will have no liability for 1977 to 1985 until Kone exhausts the policy

          limits for all of its primary policies covering the years each injured employee worked. If the

          Lamorak policies provide primary insurance, Lamorak’s liability on those policies for 1977

          to 1985 will fall on the same level as all other primary insurance. Because the circuit court

          decided the issue on a motion for summary judgment, we review the circuit court’s ruling

          de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

¶ 23                                          Primary or Excess

¶ 24         Lamorak contends that the circuit court’s judgment, that the policies at issue provide

          primary coverage, conflicts with the holding of Missouri Pacific R.R. Co. v. International

          Insurance Co., 288 Ill. App. 3d 69 (1997). In Missouri Pacific, hundreds of Missouri Pacific

          employees sought damages for injuries resulting from asbestos exposure occurring over the

          course of many years. Missouri Pacific acknowledged that it purchased only excess insurance

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        No. 1-16-3398


           for the years at issue, and the policies referred to Missouri Pacific’s SIR. Missouri Pacific,

           288 Ill. App. 3d at 72. Missouri Pacific argued that SIRs did not count as “ ‘other

           insurance’ ” within the meaning of the excess policies. Missouri Pacific, 288 Ill. App. 3d at

           74. The Missouri Pacific court rejected the argument and held that “Missouri Pacific must

           exhaust the SIRs before looking to the insurers for coverage. *** [T]he SIRs in the present

           case constitute primary coverage.” Missouri Pacific, 288 Ill. App. 3d at 82.

¶ 25          Lamorak argues that Missouri Pacific stands for the proposition that SIRs always count

           as primary insurance and that any policy that refers to an underlying SIR counts as an excess

           policy for purposes of horizontal exhaustion. We do not read Missouri Pacific so broadly.

           The Missouri Pacific court specified that Missouri Pacific’s SIRs counted as primary

           insurance, subject to horizontal exhaustion. The Missouri Pacific court did not restrict the

           freedom of others to enter into contracts that may provide for SIRs and insurance coverage

           with other effects.

¶ 26	         Lamorak’s argument that any policy that refers to a SIR must constitute an excess policy

           conflicts with insurance practice in Illinois. In Roman Catholic Diocese of Joliet, Inc. v. Lee,

           292 Ill. App. 3d 447, 449 (1997), the plaintiff purchased primary insurance for 1985 to 1986,

           with a liability limit of $100,000 over a SIR of $100,000. The plaintiff also purchased an

           excess policy for the same period. Similarly, in Rosalind Franklin University of Medicine &

           Science v. Lexington Insurance Co., 2014 IL App (1st) 113755, ¶ 20, the court noted, “[t]he

           primary policy issued by Lexington is a ‘Healthcare Professional Services Liability Policy’

           (hereinafter, the Lexington Primary Policy), which contains a limit of $1 million per ‘medical

           incident,’ subject to a $100,000 self-insured retention.” In Travelers Indemnity Co. v.

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       No. 1-16-3398


          American Casualty Co., 337 Ill. App. 3d 435, 439 (2003), the court said that a “primary

          policy typically covers claims starting at the first dollar of loss or the first dollar in excess of

          a deductible or self-retention.”

¶ 27         Thus, the reference to a SIR does not, in itself, resolve the question of whether the policy

          counts as an excess policy or a primary policy. An insured may bear the burden of a SIR and

          purchase a primary policy that refers to the underlying SIR. Illinois courts have discussed

          several characteristic distinctions between primary and excess policies. Excess policies

                 “generally do not require immediate notice of an occurrence as do provisions in

                 primary policies. [Citation.] Excess insurers are not interested in every accident, but

                 only in those that may be serious enough to involve [them]. [Citation.] Since excess

                 coverage is contingent on exhaustion of primary or underlying policies, excess

                 insurers generally do not require notification of occurrences until the excess policy is

                 reasonably likely to be implicated. [Citation.] Consequently, insurance policies for

                 excess coverage generally grant the insured some discretion in evaluating the case.”

                 (Internal quotation marks omitted.) American States Insurance Co. v. National Cycle,

                 Inc., 260 Ill. App. 3d 299, 311 (1994).

          “Primary insurance is coverage whereby liability attaches immediately upon the happening

          of the occurrence that gives rise to liability. [Citation.] Primary policies generally impose on

          the insurer a duty of defense separate from the duty to indemnify the insured against the

          claim. *** Rather than providing a duty to defend, most excess policies require the excess

          insurer to indemnify the insured for the costs of the defense as part of the ‘ultimate net loss’

          against which the policy insures.” Krusinski Construction Co. v. Northbrook Property &

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       No. 1-16-3398


          Casualty Insurance Co., 326 Ill. App. 3d 210, 219 (2001). Excess insurers usually charge

          much smaller premiums than primary insurers. “[T]his disparity in premiums is indicative of

          the reduced risk assumed by the [excess] policy.” Illinois Emcasco Insurance Co. v.

          Continental Casualty Co., 139 Ill. App. 3d 130, 133 (1985). For primary policies that have

          deductibles or SIRs, as with excess policies, “liability attaches only after a predetermined

          amount of *** coverage has been exhausted. *** This reduced risk is reflected in the cost of

          the policy.” Whitehead v. Fleet Towing Co., 110 Ill. App. 3d 759, 764 (1982).

¶ 28         Here, the policies at issue establish that Kone had a duty to notify Lamorak of any

          occurrence, regardless of the amount of potential liability. The policies at issue impose on

          Lamorak a duty to defend if the liability appears likely to exceed the SIR. Notably, the

          policies do not give Kone discretion to decide whether liability will likely exceed the SIR.

          Lamorak reserved for itself that discretion. See American States, 260 Ill. App. 3d at 311.

          Finally, the premiums for the policies at issue greatly exceed the premiums for the

          contemporaneous umbrella policies, which covered much greater dollar amounts of liability

          for a wider group of risks. The three most notable characteristics of primary insurance all

          indicate that the policies at issue constitute primary insurance.

¶ 29         Lamorak relies heavily on the policy language that expressly makes the policies “excess

          insurance, applicable excess of the retained limit.” The policies also state that “[i]n

          consideration of the reduced premium for which this policy is issued, it is agreed that the

          company’s obligation to pay *** is in excess of the retained limit.” Insofar as that language

          introduces some ambiguity into interpretation of the policies, we may look to the documents



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       No. 1-16-3398


          the parties presented to resolve the ambiguity. See Benedict v. Federal Kemper Life

          Assurance Co., 325 Ill. App. 3d 820, 824 (2001).

¶ 30         Kone appended to its motion for summary judgment several documents bearing legends

          that indicate creation in 1977. Kone presented no affidavits, depositions, or other evidence to

          explain how it obtained the documents. In its brief, Kone asserted that the documents were

          “produced by the parties in discovery,” but Kone did not say which parties produced which

          documents, except that Kone identified two charts as coming from Lamorak. Liberty also

          asserted in its brief that one document appended to the motion came from Lamorak in

          discovery. Lamorak objected that the documents appended to the motions lacked proper

          authentication, but it did not deny the assertion that it had produced the three documents in

          discovery.

¶ 31         Rule 803(16) of the Illinois Rules of Evidence (Ill. R. Evid. 803(16) (eff. Apr. 26, 2012))

          provides that the hearsay rule does not require exclusion of “[s]tatements in a document in

          existence 20 years or more the authenticity of which is established.” Rule 901(a) of the

          Illinois Rules of Evidence (Ill. R. Evid. 901(a) (eff. Jan. 1, 2011)) provides, “The

          requirement of authentication or identification as a condition precedent to admissibility is

          satisfied by evidence sufficient to support a finding that the matter in question is what its

          proponent claims.” For an allegedly ancient document, the rule requires evidence that the

          document “(A) is in such condition as to create no suspicion concerning its authenticity, (B)

          was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years

          or more at the time it is offered.” Ill. R. Evid. 901(b)(8) (eff. Jan. 1, 2011). Kone and Liberty

          presented no affidavits or testimony to support findings about when or how they found most

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           of the documents they appended to their motion for summary judgment. The presence of

           “1977” on a sheet of paper does not suffice to make a document self-authenticating. See Ill.

           R. Evid. 902 (eff. Jan. 1, 2011). We ignore the documents that lack authentication.

¶ 32          But Kone and Liberty asserted that Lamorak produced three of the documents in

           discovery, and Lamorak has not disputed that assertion. When Illinois courts interpret the

           rules of evidence, the courts may look to federal cases for guidance. People v. Thompson,

           2016 IL 118667, ¶ 40. In Architectural Iron Workers Local No. 63 Welfare Fund v. United

           Contractors, Inc., 46 F. Supp. 2d 769, 771 (N.D. Ill. 1999), the plaintiff filed many exhibits

           and the defendant objected that several specific exhibits were “inadmissable because they

           [were] unsupported by affidavit or deposition testimony.” The plaintiff asserted that some of

           the specified exhibits “were all produced during the course of the litigation in response to

           Plaintiffs’ requests for documents.” Architectural Iron Workers, 46 F. Supp. 2d at 772. The

           Architectural Iron Workers court held that “documents produced in response to discovery are

           self-authenticating. *** [T]here is no error to admit as evidence documents that Defendants

           themselves possess and produced in response to Plaintiff’s requests for production of

           documents.” Architectural Iron Workers, 46 F. Supp. 2d at 772.

¶ 33          Because Lamorak had an opportunity to determine whether it produced the contested

           documents in discovery, and it did not deny that it produced those documents, we find

           sufficient authentication for the three documents Liberty and Kone asserted that they

           received from Lamorak in discovery.

¶ 34	         The first document so authenticated is a private wire, dated June 29, 1977, from an

           insurance agent to the Kone employee responsible for risk coverage. The agent stated that

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          Lamorak was “binding the primary general liability program using the *** SIR.” The

          document supports the inference that the agent and Kone believed Lamorak had agreed to

          issue primary insurance subject to a SIR. The two charts from Lamorak show Kone’s

          coverage for 1973 through 1985. Both charts identify the Lamorak policies by number and

          specify that the policies at issue count as “Primary.”

¶ 35         All the relevant indicators show that the policies at issue provide primary coverage.

          Insofar as the language of the policies might introduce some ambiguity, contemporaneous

          documents show that the parties understood that the policies at issue provided primary

          insurance. We hold that the policies at issue provided primary insurance coverage.

¶ 36                                           CONCLUSION

¶ 37         Insurance policies Lamorak issued to Kone for 1977 to 1985 imposed on Kone a duty to

          notify Lamorak of every occurrence, regardless of whether potential liability exceeded

          Kone’s SIR, and the policies established Lamorak’s duty to defend claims that appeared

          likely to exceed the SIR. The policies also had premiums far greater than the premiums for

          the umbrella policies Lamorak issued to Kone for the same years. Contemporary documents

          show that Lamorak and Kone understood that the policies at issue provided primary

          insurance subject to a SIR. Accordingly, we affirm the circuit court’s judgment declaring that

          the policies at issue provided primary insurance coverage to Kone.

¶ 38         Affirmed.




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