                                       2017 IL App (1st) 162314
                                                                              SECOND DIVISION
                                                                              December 5, 2017
     No. 1-16-2314
     UNITED CONVEYOR CORPORATION,                    )                Appeal from the
                                                     )                Circuit Court of
            Plaintiff-Appellant,                     )                Cook County, Illinois.
                                                     )
     v.                                              )                No. 12 CH 30321
                                                     )
     ALLSTATE INSURANCE COMPANY, as                  )                Honorable
     Successor in Interest to NORTHBROOK             )                Franklin U. Valderrama,
     INSURANCE COMPANY, NORTHBROOK                   )                Judge Presiding.
     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).                         )


            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
     No. 1-16-2314


     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 the

     system. From the 1930s to early 1984, United sold asbestos-containing gaskets manufactured by

            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.

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     No. 1-16-2314


     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.


            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.
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       No. 1-16-2314


¶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 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



                                                       -4­
       No. 1-16-2314


       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
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       No. 1-16-2314


       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

       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.



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¶ 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
                                                        -7­
       No. 1-16-2314


       (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 Heinztman, 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] 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
                                                       -8­
       No. 1-16-2314


       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
                                                       -9­
       No. 1-16-2314


       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.

¶ 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
                                                          -10­
       No. 1-16-2314


       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


              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.
                                                       -11­
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       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 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
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       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 abuse of



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       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
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       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’ 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 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
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       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’

       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
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       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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