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Appellate

Representative Matters

Successfully represented Hennessy Industries before the Illinois Appellate Court in which the appellate court affirmed the trial court’s decision and ruled in Hennessy’s favor seeking insurance coverage from its umbrella and excess insurers for asbestos bodily injury claims. Hennessy and the insurers had agreed to a pro rata allocation of Hennessy’s losses, but sought summary judgment on several issues, including whether the non-cumulation clauses in some of Hennessy’s umbrella and excess policies reduce their policy limits by amounts payable by prior policies. The trial court ruled in Hennessy’s favor, finding non-cumulation clauses are incompatible with pro rata allocations, and because the parties had agreed to a pro rata allocation, the non-cumulation clauses did not apply. The insurers appealed this decision, but the Illinois Appellate Court affirmed the trial court in all respects. The Appellate Court noted that non-cumulation clauses apply only when more than one policy is responsible for the same loss. Because the pro rata allocation assigned to each triggered policy a separate and distinct share of the loss, no two policies were responsible for the same loss and the non-cumulation clauses did not apply. The court rejected the insurers’ attempts to argue that the non-cumulation clauses are triggered when a policy pays for injuries that occur outside the policy period, noting that the insurer’s argument was contrary to the language of the clauses. By affirming the trial court, the Appellate Court preserved Hennessy’s insurance limits that could have been reduced by the operation of the non-cumulation clauses. (Continental Casualty Co. v. Hennessy Industries, Inc., Ill. App. Ct. [2019])